Citation Nr: 1823344
Decision Date: 04/18/18 Archive Date: 04/25/18
DOCKET NO. 08-26 005 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee
THE ISSUE
Entitlement to service connection for bilateral hearing loss.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Carolyn Colley, Associate Counsel
INTRODUCTION
The Veteran served on active duty from May 1968 to March 1970. He is the recipient of, among other commendations, a Combat Infantryman Badge and a Purple Heart.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.
In February 2017, the Veteran and his spouse testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript is of record.
In May 2017, the Board remanded the Veteran's appeal for further development of the record. The matter is ready for appellate review.
FINDING OF FACT
The Veteran's hearing loss does not manifest a severity supporting a finding of disability rating greater than zero percent.
CONCLUSION OF LAW
The criteria for a compensable rating for bilateral hearing loss are not met.
38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1 - 4.14, 4.85, 4.86, Diagnostic Code (DC) 6100 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 ("VCAA") describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.
§§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159 and 3.326(a) (2017).
VA's duty to notify was satisfied by a letter sent to the Veteran in September 2007. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159(b).
VA's duty to assist includes helping claimants to obtain service treatment records and other pertinent records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment and personnel records, along with VA and private medical records. The duty to obtain relevant records is satisfied.
VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion necessary to make a decision on the claim. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326; see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The examinations and/or opinions must be adequate to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was afforded in-person VA examinations in September 2012, June 2013, and July 2017. The VA examiners provided clear explanations in support of their opinions and findings. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion").
Increased Rating - Bilateral Hearing Loss:
The Veteran contends that his service-connected bilateral hearing loss disability is severe enough to warrant a compensable rating.
Disability evaluations are determined by applying the criteria set forth in the Schedule for Rating Disabilities to the Veteran's current symptomatology. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7.
For increased ratings claims that arise out of an initial grant of service connection, the Board must consider the application of "staged" ratings for different periods from the filing of the claim forward, if the evidence suggests that such a rating would be appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999).
Hearing loss is rated under 38 C.F.R. §§ 4.85, 4.86, DC 6100. Under DC 6100, hearing impairment evaluations are derived by a mechanical application of the ratings schedule to the numeric designations assigned resulting from audiometric evaluations. See Lendenmen v. Principi, 3 Vet. App. 345, 349 (1992). Hearing impairment evaluations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a).
Under DC 6100, Table VI assigns a Roman numeral designation (I through XI) for hearing impairment based on the pure tone threshold average and controlled speech discrimination (Maryland CNC) testing. Table VIa assigns a Roman numeral designation for hearing impairment based only on the pure tone threshold average, and is used when speech discrimination testing is not appropriate or when indicated under the provisions of 38 C.F.R. § 4.86 regarding exceptional patterns of hearing impairment. The "pure tone threshold average" is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. 38 C.F.R.
§ 4.85(d). Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85(e).
Private treatment records indicate the Veteran underwent audiological testing and was prescribed hearing aids in May 2007 at the Veteran's private medical provider. The Veteran's pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
10
20
60
70
LEFT
10
10
15
60
65
Speech audiometry revealed speech recognition ability of 88 percent in the left ear and of 89 in the right ear. The average pure tone threshold was 40 decibels for the right ear, and 37.5 decibels for the left ear.
The Veteran was afforded a VA audiological evaluation in September 2012. The Veteran's pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
20
25
70
75
LEFT
15
15
25
70
70
Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 88 in the left ear using the Maryland CNC speech discrimination test. The average pure tone threshold was 48 decibels for the right ear, and 45 decibels for the left ear. The examiner noted that the Veteran had bilateral sensorineural hearing loss (in the frequency range of 500-4000 Hz) but that this may not be hearing loss that is considered to be a disability for VA rating purposes. The Veteran reported at that time that he experienced significant difficulty understanding speech, especially when communicating via telephone.
The Veteran was afforded another VA audiological examination in June 2013. The Veteran's pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
15
25
70
80
LEFT
15
10
30
65
75
Speech audiometry revealed speech recognition ability of 86 percent in the left ear and 86 percent in the right ear using the Maryland CNC speech discrimination test. The average pure tone threshold was 48 decibels for the right ear, and 45 decibels for the left ear. The examiner noted that the Veteran had bilateral sensorineural hearing loss (in the frequency ranges of 500-4000 Hz and 6000 Hz or higher) but that this may not be hearing loss that is considered to be a disability for VA rating purposes. The examiner also concluded that the Veteran's hearing loss impacted ordinary conditions of daily life, to include difficulty hearing speech when there is background noise.
In February 2017, the Veteran testified that his hearing had worsened. Based on this, his claim was remanded for an additional audiological examination.
The Veteran was afforded another VA audiological examination in July 2017 to assess his claim of worsening. The Veteran's pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
25
15
35
65
80
LEFT
20
10
50
65
70
Speech audiometry revealed speech recognition ability of 88 percent in the left ear and 84 percent in the right ear using the Maryland CNC speech discrimination test. The average pure tone threshold was 49 decibels for the right ear, and 49 decibels for the left ear. The examiner noted that the Veteran had bilateral sensorineural hearing loss (in the frequency ranges of 500-4000 Hz and 6000 Hz or higher) and reiterated that this may not be hearing loss that is considered to be a disability for VA rating purposes. The examiner also concluded that the Veteran's hearing loss did not impact ordinary conditions of daily life, to include his ability to work.
Applying the criteria for evaluating hearing loss to the findings of the July 2017 audiometric evaluation results in designation of Level II in the left ear and Level II in the right ear based on application of the reported findings to Tables VI and VII. These findings warrant a non-compensable rating under 38 C.F.R. § 4.85, DC 6100.
The Board has considered the Veteran's statements of the severity of his hearing loss throughout the pendency of this appeal. The Veteran is competent to report matters of which he has personal knowledge, such as difficulty hearing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); 38 C.F.R. § 3.159 (a)(2).
In the Veteran's November 2013 notice of disagreement, he stated that a VA physician prescribed him hearing aids and that such is proof of hearing loss.
Indeed, the Veteran was prescribed hearing aids; however, the use or issuance of hearing aids is not conclusive evidence as to whether a Veteran's hearing loss rises to the level of a compensable rating for VA purposes. Hearing loss is rated under 38 C.F.R. §§ 4.85, 4.86, DC 6100. Under DC 6100, hearing impairment evaluations are derived by a mechanical application of the ratings schedule to the numeric designations assigned resulting from audiometric evaluations. See Lendenmen
The preponderance of the evidence is against finding a compensable rating for the Veteran's hearing loss at any point during the appellate period. All VA medical examination audiometric results are probative and valid for rating purposes. The results include both pure tone thresholds and speech discrimination testing using the Maryland CNC test. The results of the tests reflect the severity of the Veteran's bilateral hearing loss at the time.
The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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 a compensable rating for bilateral hearing loss is denied.
____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs