HEARING LOSS

Summary

The veteran, who served from August 1975 to August 1979, appeals the denial of a compensable initial rating for bilateral hearing loss and the dismissal of claims for an increased rating for PTSD with major depressive disorder and panic disorder, as well as earlier effective dates for hearing loss and tinnitus. The Board denied the hearing loss claim, finding that audiometric testing from August 2018 and August 2019 indicated Level I hearing levels in both ears, which warrants a noncompensable rating according to 38 C.F.R. § 4.85. While the veteran reported difficulty hearing, especially in noisy environments, the Board found the audiometric findings to be the most probative evidence and concluded the preponderance of the evidence was against a compensable rating. The Board also dismissed the claims for an increased rating for PTSD and earlier effective dates for hearing loss and tinnitus, as the veteran explicitly withdrew these appeals in written correspondence in February and November 2019, respectively. Therefore, the Board lacked jurisdiction to review these withdrawn matters.

Rationale

Audiometric testing showed Level I hearing loss in both ears; Preponderance of evidence against compensable rating; Functional difficulties consistent with mild hearing loss

Full Decision Text

Citation Nr: 20009581
Decision Date: 02/06/20	Archive Date: 02/05/20

DOCKET NO. 18-53 365
DATE: February 6, 2020

ORDER

Entitlement to a compensable initial rating for bilateral hearing loss is denied.

Entitlement to an increased rating for posttraumatic stress disorder with major depressive disorder and panic disorder is dismissed.

Entitlement to an effective date earlier than June 28, 2018 for the grant of service connection for bilateral hearing loss is dismissed. 

Entitlement to an effective date earlier than June 28, 2018 for the grant of service connection for tinnitus is dismissed.  

FINDINGS OF FACT

1. The Veteran’s bilateral hearing loss has not manifested by worse than Level I hearing loss in the right and left ears.  

2. In February 2019 written correspondence, the Veteran withdrew his appeal concerning the claims of entitlement to effective dates earlier than June 28, 2018 for the grants of service connection for bilateral hearing loss and tinnitus.

3. In November 2019 written correspondence, the Veteran withdrew his appeal concerning the claim of entitlement to an increased rating for posttraumatic stress disorder with a major depressive disorder, panic disorder.

CONCLUSIONS OF LAW

1.  The criteria for a compensable initial rating for bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.10, 4.85, Diagnostic Code 6100.

2. The criteria for withdrawal of the appeal regarding the claim of entitlement to an effective date earlier than June 28, 2018 for the grant of service connection for bilateral hearing loss have been met.  38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.204.

3. The criteria for withdrawal of the appeal regarding the claim of entitlement to an effective date earlier than June 28, 2018 for the grant of service connection for tinnitus have been met.  38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.204.

4. The criteria for withdrawal of the appeal regarding the claim of entitlement to an increased rating for posttraumatic stress disorder with major depressive disorder and panic disorder have been met.  38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.204.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 1975 to August 1979.

This case comes to the Board of Veterans’ Appeals (Board) from Department of Veterans Affairs (VA) rating decisions.

In an October 2019 rating decision, entitlement to a total disability rating based on individual unemployability, effective July 31, 2017, was granted.  This constitutes a full grant of the benefit sought and covers the entire period currently on appeal, and the issue is no longer on appeal.  Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).

Increased Rating

Bilateral Hearing Loss

In an August 2018 rating decision, the Veteran was granted service connection for bilateral hearing loss and assigned a noncompensable rating.  The Veteran has appealed the assigned evaluation.

Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  

Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz).  38 C.F.R. § 4.85.  To evaluate the degree of disability from defective hearing, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness.  38 C.F.R. §§ 4.85, Tables VI and VII, Diagnostic Code 6100. 

An exceptional pattern of hearing impairment occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more.
 the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz).  38 C.F.R. § 4.85.  To evaluate the degree of disability from defective hearing, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness.  38 C.F.R. §§ 4.85, Tables VI and VII, Diagnostic Code 6100. 

An exceptional pattern of hearing impairment occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more.  38 C.F.R. § 4.86(a).  In that situation, 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.  Further, when the average puretone 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, and that numeral will then be elevated to the next higher numeral.  38 C.F.R. § 4.86(b).

The Veteran attended a VA examination in August 2018.  The Veteran reported that he must ask people to repeat themselves in order to understand them.  Audiological testing found the following puretone thresholds:

 	 	HERTZ	 	 

 	1000	2000	3000	4000

RIGHT	25	30	40	40

LEFT	20	35	55	55

 

The average puretone thresholds from 1000-4000 Hertz were 34 decibels in the right ear and 41 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 100 percent in both ears.  Applying the findings from the August 2018 examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level I hearing levels in both ears.  Where hearing loss is at Level I in both ears, a noncompensable rating is assigned.  Id. 

The Veteran also attended a VA examination in August 2019.  The Veteran reported that he does not always hear what his wife has said, that he cannot hear things that are at high frequencies, and that he does not hear well when there is background noise.  Audiological testing found the following puretone thresholds:

 	 	HERTZ	 	 

 	1000	2000	3000	4000

RIGHT	30	25	30	40

LEFT	20	30	50	50

 

The average puretone thresholds from 1000-4000 Hertz were 31 decibels in the right ear and 38 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 100 percent in both ears.  Applying the findings from the August 2019 examination to Table VI in 38 C.F.R. § 4.85 again yields a finding of Level I in both ears, and a noncompensable rating is warranted.

There are no other treatment or examination records showing testing related to hearing loss, and the Veteran has not indicated that he has received any private or VA testing to address the nature of any hearing loss.  

The functional effects of hearing loss on the Veteran’s daily life activities and occupational functioning were discussed by the Veteran at his August 2018 and August 2019 VA examinations and have been taken into consideration by VA.  See 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007).  The Veteran has reported having trouble hearing people or understanding what they are saying, especially in noisy environments.  These symptoms are reflective of the types of functional difficulty that would be expected for a person with mild hearing loss, and they are adequately reflected in the hearing levels that have been recorded on examination.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (Manifestations such as difficulty hearing speech are the types of difficulties contemplated by the schedular criteria for hearing loss.).  Accordingly, the August 2018 and August 2019 VA examinations are sufficiently in compliance with the provisions of VA regulations, and they are assigned great probative value in determining the Veteran’s level of hearing impairment.

The most probative medical evidence as to the nature of the appellant’s hearing loss are the audiometric findings, and those discussed above reveal that the Veteran’s hearing loss does not warrant a compensable rating
 mild hearing loss, and they are adequately reflected in the hearing levels that have been recorded on examination.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (Manifestations such as difficulty hearing speech are the types of difficulties contemplated by the schedular criteria for hearing loss.).  Accordingly, the August 2018 and August 2019 VA examinations are sufficiently in compliance with the provisions of VA regulations, and they are assigned great probative value in determining the Veteran’s level of hearing impairment.

The most probative medical evidence as to the nature of the appellant’s hearing loss are the audiometric findings, and those discussed above reveal that the Veteran’s hearing loss does not warrant a compensable rating.  In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; the preponderance of the evidence is against the Veteran’s claim, and the doctrine is not applicable.  38 U.S.C. § 5107(b).

Earlier Effective Date for Bilateral Hearing Loss and Tinnitus

Increased rating for posttraumatic stress disorder with major depressive disorder and panic disorder

A substantive appeal may be withdrawn in writing, except for appeals withdrawn on the record at a hearing, at any time before the Board promulgates a decision.  38 C.F.R. §§ 20.202, 20.204(b).  Withdrawal may be made by the appellant or by an authorized representative.  38 C.F.R. § 20.204(c).

In a February 2019 correspondence from his representative, the Veteran explicitly and unambiguously withdrew the pending appeal concerning the claims of entitlement to effective dates earlier than June 28, 2018 for the grants of service connection for bilateral hearing loss and tinnitus.  In November 2019 correspondence from his representative, the Veteran explicitly and unambiguously withdrew the pending appeal concerning the claim for an increased rating for posttraumatic stress disorder with major depressive disorder and panic disorder.   There remain no allegation of errors of fact or law for appellate consideration with regards to these matters.  Accordingly, the Board does not have jurisdiction to review the appeal of the claims, and they are dismissed.

 

 

DEREK R. BROWN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Mary E. Rude, Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.