Citation Nr: 18160431
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 14-12 126A
DATE:	December 26, 2018
ORDER
An initial compensable disability rating for service-connected bilateral hearing loss is denied.
FINDING OF FACT
The Veteran’s service-connected bilateral hearing loss has been manifested by no more than Level II hearing acuity in each 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, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from February 1958 to December 1959.
1. Entitlement to an initial compensable disability rating for service-connected bilateral hearing loss.
Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder.  38 U.S.C. § 1155.  Separate diagnostic codes identify the various disabilities.  Id.  It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran’s favor.  38 C.F.R. § 4.3.  If there is a question as to which disability rating to apply to the Veteran’s disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.
In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2017).  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2017); Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the Veteran’s entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Where the Veteran is appealing the initial assignment of a disability rating, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time.  Fenderson v. West, 12 Vet. App. 119 (1999).  Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.
In general, to evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness.  38 C.F.R. §§ 4.85, 4.87, Tables VI, VIa, VII.  Organic impairment of hearing acuity is measured by the results of controlled speech discrimination tests (Maryland CNC) together with the average hearing threshold level as measured by a pure tone audiometry test in the frequencies of 1000, 2000, 3000, and 4000 cycles per second.  See 38 C.F.R. § 4.85 (a), (d).  Ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  The schedular ratings are intended to make proper allowance for improvement by hearing aids.  38 C.F.R. § 4.86.
Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86. Specifically, an exceptional pattern of hearing loss is hearing loss of 55 decibels or more in each of the four specified frequencies (i.e. 1000, 2000, 3000, and 4000 Hertz), or hearing loss with a pure tone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  38 C.F.R. § 4.86(a), (b). 
Where there is an exceptional pattern of hearing loss of 55 decibels or more in each of the four specified frequencies, 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 Board further notes the United States Court of Appeals for Veterans Claims (Court) has held that, “in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.” Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).
The Veteran asserts that his bilateral hearing loss is more severe than reflected by the currently assigned noncompensable disability rating.  Specifically, he described difficulty hearing conversations while in a crowd or around background noise, and the need to increase the volume of his electronic devices to hear.


The claims file contains a May 2010 VA audiology assessment consultation.  The examination revealed right ear auditory thresholds in the frequencies 1000, 2000, 3000, and 4000 Hertz as 20, 25, 50, and 70 dB respectively; for left ear, auditory thresholds in the same frequencies were recorded as 20, 20, 35, and 60 dB respectively.  Average hearing threshold in the right ear was 41 dB and in the left ear was 34 dB.  Word recognition scores were listed as 100 percent for each ear. Applying 38 C.F.R. § 4.85, Table VI, to the above audiological findings, the Veteran has a numeric designation of Level I for each ear.  The pure tone thresholds for this examination do not reflect an exceptional pattern of hearing loss in either ear as contemplated by 38 C.F.R. § 4.86(a) or 38 C.F.R. § 4.86(b); as such, those provisions are inapplicable.  Application of 38 C.F.R. § 4.85, Table VII, results in a zero percent disability rating.
The Veteran was afforded a VA examination in September 2011.  The examination revealed right ear auditory thresholds in the frequencies 1000, 2000, 3000, and 4000 Hertz as 20, 25, 50, and 70 dB respectively; for left ear, auditory thresholds in the same frequencies were recorded as 20, 20, 35, and 60 dB respectively.  Average hearing threshold in the right ear was 41 dB and in the left ear was 34 dB.  Speech auditory revealed speech discrimination scores of 94 percent for each ear.  Applying 38 C.F.R. § 4.85, Table VI, to the above audiological findings, the Veteran has a numeric designation of Level I for each ear.  The pure tone thresholds for this examination do not reflect an exceptional pattern of hearing loss in either ear as contemplated by 38 C.F.R. § 4.86(a) or 38 C.F.R. § 4.86(b); as such, those provisions are inapplicable.  Application of 38 C.F.R. § 4.85, Table VII, results in a zero percent disability rating.
A VA examination report dated in April 2013 documents the Veteran’s report of problems understanding conversation, especially in a group or noisy environment. The examination revealed right ear auditory thresholds in the frequencies 1000, 2000, 3000, and 4000 Hertz as 20, 25, 50, and 70 dB respectively; for left ear, auditory thresholds in the same frequencies were recorded as 20, 20, 35, and 60 dB respectively.  Average hearing threshold in the right ear was 41 dB and in the left ear was 34 dB.  Speech auditory revealed speech discrimination scores of 100 percent for each ear.  Applying 38 C.F.R. § 4.85, Table VI, to the above audiological findings, the Veteran has a numeric designation of Level I for each ear. The pure tone thresholds for this examination do not reflect an exceptional pattern of hearing loss in either ear as contemplated by 38 C.F.R. § 4.86(a) or 38 C.F.R. § 4.86(b); as such, those provisions are inapplicable.  Application of 38 C.F.R. § 4.85, Table VII, results in a zero percent disability rating.
VA treatment records dated in October 2013 document the Veteran’s agreement to receive hearing aids.  In January 2016, he underwent a bilateral ear irrigation procedure described as well tolerated.
At the April 2016 Board hearing, the Veteran indicated that his hearing loss evaluation should be increased and that his hearing loss had worsened since his last VA examination.
In a May 2016 private audiological report, right ear auditory thresholds in the frequencies 1000, 2000, 3000, and 4000 Hertz as 20, 40, 55, and 65 dB respectively; for the left ear, auditory thresholds in the same frequencies were 25, 45, 60, and 75 dB respectively.  Average hearing threshold in the right ear was 45 dB and in the left ear was 51 dB.  Speech tests revealed discrimination scores of 86 percent in the right ear and 88 percent in the left ear.  Applying 38 C.F.R. § 4.85, Table VI, to the above audiological findings, the Veteran has a numeric designation of Level II for each ear.  The pure tone thresholds for this examination do not reflect an exceptional pattern of hearing loss in either ear as contemplated by 38 C.F.R. § 4.86(a) or 38 C.F.R. § 4.86(b); as such, those provisions are inapplicable.  Application of 38 C.F.R. § 4.85, Table VII, results in a zero percent disability rating.
Pursuant to a June 2016 Board remand, the Veteran was afforded a VA examination in July 2016.  The examination revealed right ear auditory thresholds in the frequencies 1000, 2000, 3000, and 4000 Hertz as 15, 25, 45, and 65 dB respectively; for left ear, auditory thresholds in the same frequencies were recorded as 20, 20, 35, and 60 dB respectively. Average hearing threshold in the right ear was 38 dB and in the left ear was 34 dB.  Speech auditory revealed speech discrimination scores of 100 percent for each ear.  Applying 38 C.F.R. § 4.85, Table VI, to the above audiological findings, the Veteran has a numeric designation of Level I for each ear. The pure tone thresholds for this examination do not reflect an exceptional pattern of hearing loss in either ear as contemplated by 38 C.F.R. § 4.86(a) or 38 C.F.R. § 4.86(b); as such, those provisions are inapplicable.  Application of 38 C.F.R. § 4.85, Table VII, results in a zero percent disability rating.
The Veteran was afforded another VA examination in May 2018.  The examination revealed right ear auditory thresholds in the frequencies 1000, 2000, 3000, and 4000 Hertz as 15, 25, 45, and 60 dB respectively; for left ear, auditory thresholds in the same frequencies were recorded as 20, 20, 40, and 60 dB respectively.  Average hearing threshold in the right ear was 36 dB and in the left ear was 35 dB.  Speech auditory revealed speech discrimination scores of 100 percent for each ear.  As for functional impact, the Veteran reported that he could not hear very well, did not assert any occupational functioning effects.  Applying 38 C.F.R. § 4.85, Table VI, to the above audiological findings, the Veteran has a numeric designation of Level I for each ear.  The pure tone thresholds for this examination do not reflect an exceptional pattern of hearing loss in either ear as contemplated by 38 C.F.R. § 4.86(a) or 38 C.F.R. § 4.86(b); as such, those provisions are inapplicable. Application of 38 C.F.R. § 4.85, Table VII, results in a zero percent disability rating.
After carefully reviewing the evidence of record, the Board finds that the preponderance of the evidence is against the assignment of a compensable disability rating for the Veteran’s service-connected bilateral hearing loss disability.  The evidence of record does not more nearly reflect the criteria for a compensable disability rating.  38 C.F.R. § 4.7.
The Board notes that the most recent May 2018 VA examination report specifically addresses the functional limitations caused by the Veteran’s bilateral hearing loss, indicating that there are no effects on occupational functioning.
To the extent that the Veteran reports that his hearing acuity is worse than rated due to difficulty hearing conversations while in a crowd or around background noise, the Board has considered his statements.  This evidence is both competent and credible in regard to reporting his hearing acuity; however, far more probative of the degree of the disability are the results of testing prepared by skilled professionals because the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss.  In essence, lay statements are of limited probative value.  As a layperson, the Veteran is competent to report difficulty with his hearing; however, he is not competent to assign particular speech recognition scores or pure tone decibel readings to his current acuity problems.  As indicated above, ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. Accordingly, the claim for an initial compensable disability rating for bilateral hearing loss must be denied.  
In reaching this conclusion, the Board has considered all evidence of record; however, because the preponderance of the evidence is against the claim, the “benefit-of-the-doubt” rule does not apply.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.
 
JAMES L. MARCH
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Amanda Baker, 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

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