Citation Nr: 1761149
Decision Date: 12/29/17 Archive Date: 01/02/18

DOCKET NO. 17-55 862 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut

THE ISSUE

Entitlement to an initial compensable rating for bilateral hearing loss.

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

Jasmin C. Freeman, Associate Counsel

INTRODUCTION

The Veteran served on active duty in the Army from November 1953 to November 1955.

This matter is before the Board of Veterans’ Appeals (Board) on appeal of a May 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office in Hartford, Connecticut (RO).

The Veteran was offered the opportunity to testify at a hearing before the Board, but he declined.

This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2017); 38 U.S.C. § 7107(a)(2) (2012).

FINDING OF FACT

The Veteran’s bilateral hearing loss manifests, at worst, to Level II hearing impairment in the right ear and Level III hearing impairment in the left ear.

CONCLUSION OF LAW

The criteria for an initial compensable disability rating for service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102 , 4.85, 4.86, Diagnostic Code (DC) 6100 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran contends that his service-connected bilateral hearing loss warrants a compensable rating. For the reasons that follow, the Board concludes that an increased rating is not warranted.

Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests, together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per second (Hertz). To evaluate the degree of disability for service-connected hearing loss, 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. Examinations are conducted without the use of hearing aids. 38 C.F.R. § 4.85 (a). Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Bruce v. West, 11 Vet. App. 405, 409 (1998), quoting Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

The Veteran has been assigned a noncompensable rating for his hearing loss.

The Veteran received a VA examination in May 2017. It was noted that the Veteran’s hearing loss caused him to have to ask for frequent repetitions. On audiological examination, pure tone thresholds, in decibels, were as follows:

HERTZ

500
1000
2000
3000
4000
RIGHT
40
45
60
65
70
LEFT
40
50
70
80
85

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 88 percent in the left ear.

Pure tone thresholds averaged 60 in the right ear and 71 in the left ear. Under Table VI, when considered with the Veteran’s speech audiometry results, this corresponds to Level II in the right ear and Level III in the left ear. These categories correspond with a noncompensable rating under Table VII. Further, as pure tone thresholds at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) were not 55 decibels or more, or 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Veteran does not meet the criteria for a higher disability evaluation for exceptional hearing impairment in either ear under 38 C.F.R. § 4.86.

The Board has considered the Veteran’s lay statements that his hearing loss is worse than currently evaluated. In a May 2017 statement, the Veteran reported that his hearing was “out of the norm.” In his September 2017 substantive appeal, the Veteran stated that he misses out on conversations. Additionally, the Veteran has reported that he frequently has to ask for repetition. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board finds the objective measurements of hearing loss fall outside the realm of common knowledge of a layperson and the Veteran is, thus, not competent to provide evidence on the issue of severity. See Jandreau, 492 F.3d at 1377, n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Board finds the VA examination described herein is more probative than the Veteran’s subjective complaints of increased symptomatology in establishing the specific level of hearing loss in light of the rating schedule, which is determined by objective levels of hearing acuity.

The Board acknowledges the difficulties that the Veteran experiences as a result of his hearing loss. However, as explained above, the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Thus, the Board must predicate its determination on the basis of the results of the audiology results of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). As such, the Board is bound by law to apply VA’s rating schedule based on the Veteran’s audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

The audiometric evaluations discussed above do not reveal results warranting an initial compensable rating for service-connected bilateral hearing loss. As such, a higher evaluation for bilateral hearing loss is denied.

As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

ORDER

An initial compensable rating for bilateral hearing loss is denied.

____________________________________________
M. TENNER
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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