Citation Nr: 18132307
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 13-35 140
DATE:	September 6, 2018
ORDER
Entitlement to an initial compensable rating for bilateral hearing loss is denied.
FINDING OF FACT
Throughout the appeal period, audiometric testing reflects hearing acuity of no higher than Level I in each ear.
CONCLUSION OF LAW
The criteria for a compensable initial rating for bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty in the United States Air Force from June 1976 to June 1980, from February 2003 to January 2004, from July 2006 to September 2006, and from May 2008 to July 2008.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).  The Board remanded the appeal for further development in September 2017.
Entitlement to an initial compensable rating for bilateral hearing loss is denied.
I.	Veteran’s Contentions
The Veteran asserts that a compensable rating for his bilateral hearing loss is warranted due to the severity of his hearing impairment, which he reports has changed his everyday living habits, including not being able to hear people in a room with background noise, or cars on the road while jogging or bicycling, and requires use of hearing aids.  See October 2012 Notice of Disagreement and December 2013 VA Form 9.
II.	General Rating Principles and Rating Criteria
Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155.
Where there is a question as to which of two 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.  See 38 C.F.R. § 4.7.  Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of “staged ratings” is required.  Fenderson v. West 12 Vet. App. 119, 126 (1999).
The assignment of a disability rating for a hearing impairment is derived by a purely mechanical application of the rating schedule to the numeric designations derived from the results of audiometric evaluations.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Evaluations of bilateral defective hearing range from noncompensable 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 audiometric tests at the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz).  To evaluate the degree of disability from bilateral defective hearing, the rating schedule establishes 11 auditory acuity levels designated from level I, for essentially normal acuity, through level XI, for profound deafness.  38 C.F.R. §§ 4.85, 4.87, Tables VI and VII.  
When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 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).  When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, 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.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(b).  
Table VIa, “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average.  Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of Section 4.86.  38 C.F.R. § 4.85(c).  
III.	Analysis
The Veteran is currently assigned a noncompensable rating for his service-connected bilateral hearing loss.  The appeal period is from May 16, 2011, the date of award of service connection for his bilateral hearing loss.
The Veteran was afforded two VA audiology examinations during the appeal period.  The April 2012 VA examiner recorded the following findings:
			HERTZ		
		1000	2000	3000	4000
RIGHT		0	5	35	40
LEFT		10	25	55	45

Based on this audiometric data, the average pure tone threshold is 20 decibels in the right ear and 33.75 decibels in the left ear.  Speech audiometry revealed a speech recognition ability of 96 percent in bilaterally. 
Additionally, the October 2017 VA examiner recorded the following findings:
			HERTZ		
		1000	2000	3000	4000
RIGHT		5	20	45	45
LEFT		20	40	65	55

Based on this audiometric data, the average pure tone threshold is 28.75 decibels in the right ear and 45 decibels in the left ear.  Speech audiometry revealed a speech recognition ability of 100 percent in the right ear and 96 percent in the left ear. 
Controlled speech discrimination testing (Maryland CNC) and pure tone audiometry testing results from both VA audiology examinations conducted in April 2012 and October 2017 fail to demonstrate more profound hearing loss than Level I in both ears, which warrants a noncompensable percent rating.  See 38 C.F.R. § 4.85, Table VI, Table VII (DC 6100).  A pattern of exceptional hearing loss is also not demonstrated, as puretone thresholds were not 55 decibels or more at 1000, 2000, 3000, and 4000 Hertz or 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz during the examinations.  38 C.F.R. § 4.86.
The Board acknowledges the Veteran’s assertion that the April 2012 VA examination is subjective, as the testing occurred in a sound proof room, thus not accounting for background noise.  See December 2013 VA Form 9.  However, the Board emphasizes that the April 2012 VA puretone audiometry test was rendered in accordance with the American National Standard Institute standards for ambient noise and that even if the April 2012 test results were not considered, the subsequent October 2017 puretone thresholds and speech recognition scores do not allow for a compensable rating.
Additionally, the Veteran has reported that the functional impact of his hearing loss includes difficulty hearing conversations with other people, difficulty hearing cars while jogging or bicycling, and use of hearing aids.  Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007.  Notably, difficulty or inability to hear or understand speech or to hear various other sounds in various contexts is contemplated in the schedular rating criteria.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017).  While the Board acknowledges and is sympathetic to the Veteran’s assertions that he perceives his hearing loss to be more severe than his assigned disability ratings reflect, the Board is bound by applicable laws and regulations which require specific audiometric data to award ratings higher than those currently assigned.  Thus, the preponderance of the evidence does not allow for a compensable rating, the benefit of the doubt is not applicable, and the appeal is denied.  
 
S. BUSH
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Asante, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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