Citation Nr: 1749090	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  13-14 571	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to an initial compensable rating for a bilateral hearing loss disability.


REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.


ATTORNEY FOR THE BOARD

A. Yaffe, Associate Counsel







INTRODUCTION

The Veteran had active duty from May 1974 to May 1978.

This matter comes before the Board of Veterans' Appeals (Board) from a January 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which granted a non-compensable rating for bilateral hearing loss. 

In November 2016, the Board remanded the case in order to schedule the Veteran for a Travel Board hearing per his request.   However, in a December 2016 correspondence, the Veteran indicated that he would like to withdraw his hearing request.  The Veteran's hearing request is therefore considered to have been withdrawn.  See 38 C.F.R. § 20.704(d) (2017).

The Board notes that additional evidence was associated with the Veteran's file after the issuance of the statement of the case (NOS).  Nevertheless, in an October 2017 informal hearing presentation (IHP), the Veteran's representative waived initial RO consideration of the new evidence. 

The case has now been returned to the Board for further appellate review. 


FINDINGS OF FACT

1.  For the period on appeal prior to July 18, 2016, the Veteran's bilateral hearing loss has been manifested by hearing acuity no worse than Level II in the right ear and Level II in the left ear.

2.  For the period on appeal from July 18, 2016, forward, the Veteran's bilateral hearing loss has been manifested by hearing acuity no worse than Level IV in the right ear and Level III in the left ear.


CONCLUSIONS OF LAW

1.   For the period on appeal prior to July 18, 2016, the criteria for an initial compensable rating for bilateral hearing loss disability are not met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.85, 4.86, Diagnostic Code 6100 (2017).

2.  For the period on appeal from July 18, 2016, forward, the criteria for a 10 percent rating, but no higher, for bilateral hearing loss are met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.85, 4.86, Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).


Increase Rating - Applicable Laws and Regulations

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4.  38 U.S.C.A. § 1155.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21.

Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25 (2017).  Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities.  38 C.F.R. § 4.14 (2017).  It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

As applicable here, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  Staged ratings are appropriate for any initial rating claim, as applicable here, when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings.  Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  

A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through their senses.  See Layno v. Brown, 6 Vet. App. 465 (1994).  Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation.  Barr, 21 Vet. App. 303.

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Under Diagnostic Code 6100, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examination.  Evaluations of hearing impairment range from non-compensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000; 2,000; 3,000; and 4,000 Hertz (cycles per second).  

To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness.  38 C.F.R. § 4.85, Diagnostic Code 6100.  As set forth in the regulations, Tables VI, VIA, and VII are used to calculate the rating to be assigned.  See 38 C.F.R. § 4.85, Diagnostic Code 6100.  Hearing tests will be conducted without hearing aids, and the results are charted on Table VI and Table VII.  See 38 C.F.R. § 4.85. 

Alternatively, VA regulations provide that in cases of exceptional hearing loss, when the pure tone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(a).  The provisions of 38 C.F.R. § 4.86(b) further provide that, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever would result in the higher numeral.

Analysis

The Veteran asserts that his hearing loss is worse than contemplated by the non-compensable rating assigned pursuant to Diagnostic Code 6100.  38 C.F.R. § 4.85.  

Under Diagnostic Code 6100, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examination.  Evaluations of hearing impairment range from non-compensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000; 2,000; 3,000; and 4,000 Hertz (cycles per second).  To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness.  38 C.F.R. § 4.85, Diagnostic Code 6100.  As set forth in the regulations, Tables VI, VIA, and VII are used to calculate the rating to be assigned.  See 38 C.F.R. § 4.85, Diagnostic Code 6100.  Hearing tests will be conducted without hearing aids, and the results are charted on Table VI and Table VII.  See 38 C.F.R. § 4.85. 

Alternatively, VA regulations provide that in cases of exceptional hearing loss, when the pure tone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(a).  The provisions of 38 C.F.R. § 4.86(b) further provide that, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever would result in the higher numeral.

In determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment.  The opinions and observations of the Veteran alone are not sufficient to address the rating criteria under 38 C.F.R. § 4.85, Diagnostic Code 6100 with respect to determining the severity of his service-connected bilateral hearing loss disability.  See Moray v. Brown, 2 Vet. App. 211, 214 (1993); see also 38 C.F.R. § 3.159(a)(1) and (2).

Turning now to the applicable evidence, the Veteran underwent a VA audiology examination in December 2012.  Pure tone thresholds, in decibels, were as follows:




HERTZ



AVG
1000
2000
3000
4000
RIGHT
53
25
40
70
75
LEFT
53
15
45
75
75

Speech recognition score was 88 percent, bilaterally. 

Here, applying the December 2012 audiometric result to Table VII, the Veteran had Level II hearing acuity, bilaterally, resulting in a non-compensable rating.  38 C.F.R. § 4.85, Diagnostic Code 6100.  An exceptional hearing pattern is not demonstrated.

In support of his claim, the Veteran submitted a private audiology report dated July 18, 2016.  A private audiologist (Doctor of Audiology) performed the audiogram.  The audiologist noted the Veteran's audiogram results in graphical form and then interpreted the results in chart form.  Also, the private audiologist specifically indicated that the word recognition score was obtained utilizing the Maryland CNC test.  


According to the July 2016 audiogram, pure tone thresholds, in decibels, were as follows:




HERTZ



AVG
1000
2000
3000
4000
RIGHT
54
20
50
70
75
LEFT
61
30
50
80
85

Speech recognition score was 80 percent in the right ear and 84 percent in the left ear.   

Here, the July 2016 audiograms results demonstrate an increase in the Veteran's hearing loss disability.  In this regard, applying the July 2016 private audiometric result to Table VII, the Veteran had Level IV hearing acuity in the right ear and Level III hearing acuity in the left ear, resulting in a 10 percent disability rating.  38 C.F.R. § 4.85, Diagnostic Code 6100.  There are no additional audiograms of record.

Accordingly, for the rating period prior to July 18, 2016, there is no basis to support an initial compensable rating for the Veteran's service-connected bilateral hearing loss; however, from July 18, 2016, a rating of 10 percent, but no higher is warranted.  

Moreover, the Veteran does not assert, and the record does not otherwise raise the issue of unemployability due to his hearing loss disability.  Also, the private audiology report reflects that the Veteran is gainfully employed by the federal government.  Thus, the evidence does not raise the issue of entitlement to a total disability rating based on individual unemployability (TDIU).  See 38 C.F.R. §§ 3.340, 4.16 (2017); Rice v. Shinseki, 22 Vet. App. 447, 453 (2009).

Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

ORDER

Entitlement to an initial compensable rating for bilateral hearing loss prior to July 18, 2016, is denied. 

From July 18, 2016, forward, a 10 percent rating, but not higher, for bilateral hearing loss disability, is granted, subject to the laws and regulations governing monetary benefits. 



____________________________________________
S. B. MAYS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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