16-35 212 ( 2018 )

Citation Nr: 1812670
Decision Date: 02/28/18 Archive Date: 03/08/18
DOCKET NO. 16-35 212 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas
THE ISSUE
Entitlement to a rating in excess of ten percent since August 3, 2015, for bilateral hearing loss.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
WITNESSES AT HEARING ON APPEAL
The Veteran and his spouse
ATTORNEY FOR THE BOARD
S. Anwar, Associate Counsel
INTRODUCTION
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) (West 2014).
The Veteran had active service from January 1950 to December 1953.
This matter comes before the Board of Veterans' Appeals (Board) from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.
In January 2017, the Veteran and his spouse testified at a Travel Board hearing before the undersigned Veterans Law Judge, as assisted by counsel. The undersigned noted the issues on appeal and engaged in a colloquy with the Veteran toward substantiation of the claims. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A copy of the hearing transcript is associated with the claims file.
The case was remanded in September 2017 for evidentiary development. All actions ordered by the remand have been accomplished.
Pursuant to VA's duties to notify and assist the Veteran, VA advised the claimant how to substantiate an application for benefits, obtained all relevant and available evidence, and conducted any appropriate medical inquiry. The appeal is ready for appellate review. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system.
FINDING OF FACT
Since August 3, 2015, the Veteran's bilateral hearing loss manifested with 69 to 73 average pure tone decibel hearing loss and 48 to 94 percent speech discrimination in the left ear; and 64 to 66 average pure tone decibel hearing loss and 64 to 94 percent speech discrimination in the right ear.
CONCLUSION OF LAW
The criteria for a 30 percent rating for bilateral hearing loss since August 3, 2015, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.85, 4.86, 4.87a, Diagnostic Code 6100 (2016).
REASONS AND BASES FOR FINDING AND CONCLUSION
Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation 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.
In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims).
The Rating Schedule provides rating tables for the evaluation of hearing impairment. 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, which relate to 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).
Exceptional patterns of hearing impairment are provided for in 38 C.F.R. § 4.86. 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 is evaluated separately. 38 C.F.R. § 4.86 (a).
Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). However, in addition to providing objective test results, a VA audiological examination report must address the functional effects caused by a hearing disability because an extraschedular rating under 38 C.F.R. § 3.321 (b) "does not rely exclusively on objective test results to determine whether a referral for an extraschedular rating is warranted." Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). VA's policy requiring VA audiologists to describe the effect of a hearing disability on occupational functioning and daily activities facilitates extraschedular determinations. Id.
The Veteran underwent six audiological evaluations during the appellate period, including a year prior to the date of application. As noted below, the October 2017 audiological evaluation was not valid for rating purposes, and will not be used to determine the severity of the Veteran's hearing loss during the appellate period.
At the September 2014 audiological consultation for hearing aids, the Veteran's hearing loss demonstrated as the following pure tone thresholds, in decibels:
HERTZ
500
1000
2000
3000
4000
RIGHT
35
40
65
70
65
LEFT
40
50
65
70
70
Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 84 percent in the left ear using the Maryland CNC speech discrimination test. The average pure tone thresholds of 1000, 2000, 3000, and 4000 Hz, rounded to the nearest whole number, were 60 for the right ear and 64 for the left ear. The examiner, a clinical audiologist, assessed the Veteran with mild to severe sensorineural hearing loss. The examiner fitted the Veteran with hearing aids.
At the January 2015 audiological evaluation, pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
35
40
65
70
70
LEFT
45
50
65
70
70
Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 76 percent in the left ear using the Maryland CNC speech discrimination test. The average pure tone thresholds of 1000, 2000, 3000, and 4000 Hz, rounded to the nearest whole number, were 61 for the right ear and 64 for the left ear. He was assessed with bilateral sensorineural hearing loss. The examiner noted the functional effects of the Veteran's hearing loss included difficulty hearing while on the phone or with background noises, even while wearing hearing aids.
At the August 2015 audiological evaluation, the Veteran's hearing loss demonstrated as the following pure tone thresholds, in decibels:
HERTZ
500
1000
2000
3000
4000
RIGHT
45
45
65
75
70
LEFT
50
55
70
75
75
Speech audiometry revealed speech recognition ability of 64 percent in the right ear and of 64 percent in the left ear using the Maryland CNC speech discrimination test. The average pure tone thresholds of 1000, 2000, 3000, and 4000 Hz, rounded to the nearest whole number, were 64 in the right ear and 69 in the left ear. The examiner assessed the Veteran with mild to severe sensorineural hearing loss with poor word discrimination bilaterally, noting the Veteran's hearing loss continued to progress, "primarily in the low to mid frequencies."
At the September 2015 audiological evaluation, pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
45
45
70
75
75
LEFT
55
55
75
80
80
Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 94 percent in the left ear using the Maryland CNC speech discrimination test. The average pure tone thresholds of 1000, 2000, 3000, and 4000 Hz, rounded to the nearest whole number, were 66 in the right ear and 73 in the left ear. The examiner assessed the Veteran with bilateral sensorineural hearing loss. The examiner noted the functional effects of the Veteran's hearing loss included trouble hearing conversations regardless of the presence of background noises, even while wearing hearing aids.
At the January 2017 audiological evaluation, pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
45
45
65
75
70
LEFT
50
55
70
75
75
Speech audiometry revealed speech recognition ability of 64 percent in the right ear and of 60 percent in the left ear using the Maryland CNC speech discrimination test. The average pure tone thresholds of 1000, 2000, 3000, and 4000 Hz, rounded to the nearest whole number, were 64 in the right ear and 69 in the left ear. The examiner assessed the Veteran the mild to severe sensorineural hearing loss in the right ear and moderate to severe sensorineural hearing loss in the left ear. The examiner noted there was "little to no change in hearing sensitivity" when compared with previous examination results. The examiner also noted that the Veteran's initial responses were "elevated" but that they improved after reinstruction.
At the October 2017 audiological evaluation, pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
65
70
80
85
85
LEFT
80
80
95
105
105
Speech audiometry revealed speech recognition ability of 56 percent in the right ear and of 48 percent in the left ear using the Maryland CNC speech discrimination test. The average pure tone thresholds of 1000, 2000, 3000, and 4000 Hz, rounded to the nearest whole number, were 80 in the right ear and 96 in the left ear. The examiner noted the test results were not valid for rating purposes because the Veteran had a history of elevated responses, and, given the significantly poorer test results when compared to the January 2017 evaluation, indicated either a "non-organic component" or a "sudden change" in hearing in the past nine months. The examiner also noted the Veteran's speech discrimination scores were appropriate for the Veteran.
Given these results, the Veteran's left ear demonstrated "exceptional" hearing loss during the appellate period. Therefore, the Veteran's bilateral hearing loss disability will be evaluated using either Table VI or Table VIa, whichever results in the higher numeral.
With regards to the September 2014 examination, the results yield a numerical designation of "IV" for the right ear (between 58 and 65 average pure tone decibel hearing loss, with between 76 and 82 percent speech discrimination), and a numerical designation of "III" for the left ear (between 68 and 65 average pure tone decibel hearing loss, with between 84 and 90 percent speech discrimination). Entering the category designations for each ear into Table VII results in a 10 percent disability evaluation.
With regards to the January 2015, the results yield a numerical designation of "IV" for the right ear (between 58 and 65 average pure tone decibel hearing loss, with between 76 and 82 percent speech discrimination), and a numerical designation of "IV" for the left ear (between 58 and 65 average pure tone decibel hearing loss, with between 76 and 82 percent speech discrimination). Entering the category designations for each ear into Table VII results in a 10 percent disability evaluation.
With regards to the August 2015 examination, the Veteran's left ear alone demonstrated "exceptional" hearing loss. The results yielded a number designation of "VI" for the right ear (between 58 and 65 average pure tone decibel hearing loss, with between 60 and 66 percent speech discrimination) using Table VI. The two numerical designations for the left ear, given its "exceptional" hearing loss, yielded a designation of "VII" in Table VI (between 58 and 65 average pure tone decibel hearing loss, with between 76 and 82 percent speech discrimination) and a designation of "V" in Table VIa (between 63 and 69 average pure tone decibel hearing loss only). Entering the category designations of each ear into Table VII results in a 30 percent disability evaluation using Table VI for the Veteran's left ear and a 20 percent disability evaluation using Table VIa.
With regards to the September 2015 examination, the Veteran's left ear alone demonstrated "exceptional" hearing loss. The results yielded a number designation of "II" for the right ear (between 66 and 73 average pure tone decibel hearing loss, with between 92 and 100 percent speech discrimination) using Table VI. The two numerical designations for the left ear, given its "exceptional" hearing loss, yielded a designation of "II" in Table VI (between 66 and 73 average pure tone decibel hearing loss, with between 92 and 100 percent speech discrimination) and a designation of "VI" in Table VIa (between 70 and 76 average pure tone decibel hearing loss only). Entering the category designations of each ear into Table VII results in a noncompensable disability evaluation using Table VI for the Veteran's left ear and a 10 percent disability evaluation using Table VIa.
With regards to the January 2017 examination, the Veteran's left ear alone demonstrated "exceptional" hearing loss. The results yielded a number designation of "VI" for the right ear (between 58 and 65 average pure tone decibel hearing loss, with between 60 and 66 percent speech discrimination) using Table VI. The two numerical designations for the left ear, given its "exceptional" hearing loss, yielded a designation of "VII" in Table VI (between 66 and 73 average pure tone decibel hearing loss, with between 60 and 66 percent speech discrimination) and a designation of "V" in Table VIa (between 63 and 69 average pure tone decibel hearing loss only). Entering the category designations of each ear into Table VII results in a 30 percent disability evaluation using Table VI for the Veteran's left ear and a 20 percent disability evaluation using Table VIa.
The Board finds that a rating of 30 percent is warranted. The evidence demonstrates that the August 2015, September 2015 and January 2017 audiological examinations were adequate for rating purposes, and that the severity of the Veteran's hearing loss was adequately assessed at each of the three audiological examinations conducted during the appellate period.
ORDER
A rating of 30 percent for bilateral hearing loss since August 3, 2015, is granted.
____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs