Citation Nr: 0809892	
Decision Date: 03/25/08    Archive Date: 04/09/08

DOCKET NO.  05-18 141	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, 
Michigan


THE ISSUE

Entitlement to an initial compensable evaluation for 
bilateral hearing loss.


REPRESENTATION

Appellant represented by:	AMVETS


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

A. Shawkey, Counsel


INTRODUCTION

The veteran served on active duty from September 1954 to 
September 1957.

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from an August 2004 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Detroit, Michigan.  In that decision the RO granted service 
connection for bilateral hearing loss and assigned a 
noncompensable rating effective in December 2003.  The 
veteran disagrees with the assigned rating.

In December 2006, the veteran testified before the 
undersigned Acting Veterans Law Judge at a Board hearing at 
the RO.  A transcript of that hearing has been incorporated 
into the claims file.  This matter was previously before the 
Board in April 2007 at which time it was remanded to the RO 
for further evidentiary development.


FINDING OF FACT

From the date of the grant of service connection, the veteran 
has had bilateral hearing loss manifested by no greater than 
level I hearing acuity in the right ear and level I hearing 
acuity in the left ear.


CONCLUSION OF LAW

The criteria for a compensable schedular evaluation for 
bilateral hearing loss have not been met from the effective 
date of the grant of service connection. 38 U.S.C.A. §§ 1155, 
5107 (West 2002); 38 C.F.R. §§ 3.385, 4.1, 4.85, 4.86 (2007).




REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000

On November 9, 2000, the President signed into law the 
Veterans Claims Assistance Act of 2000 (VCAA), which has been 
codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 
5107, 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 
3.326(a).  Under the VCAA, VA has a duty to notify the 
veteran of any information and evidence needed to 
substantiate and complete a claim, and of what part of that 
evidence is to be provided by the claimant and what part VA 
will attempt to obtain for the claimant.  38 U.S.C.A. § 
5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 
Vet. App. 183, 187 (2002).

The United States Court of Appeals for Veteran Claims' 
(Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 
(2004), held, in part, that a VCAA notice, as required by 38 
U.S.C.A. § 5103(a), must be provided to a claimant before the 
initial unfavorable agency of original jurisdiction (AOJ) 
decision on a claim for VA benefits.  This decision has since 
been replaced by Pelegrini v. Principi, 18 Vet. App. 112 
(2004), in which the Court continued to recognize that 
typically a VCAA notice, as required by 38 U.S.C.A. § 
5103(a), must be provided to a claimant before the initial 
unfavorable AOJ decision on a claim for VA benefits.  In this 
case, VA satisfied its duties to the veteran in a VCAA letter 
issued in July 2004.  The letter predated the August 2004 
rating decision.  Since the appellate issue in this case 
(entitlement to assignment of a higher initial rating) is a 
downstream issue from that of service connection (for which 
the July 2004 VCAA letter was duly sent), another VCAA notice 
is not required.  VAOPGCPREC 8-2003.  

Furthermore, collectively, the July 2004 VCAA letter, 
February 2005 statement of the case, and June 2005 and 
October 2007 supplemental statements of the case, notified 
the veteran of what information and evidence is needed to 
substantiate his claim for a higher initial rating for 
bilateral hearing loss, as well as what information and 
evidence must be submitted by the claimant, what information 
and evidence will be obtained by VA, and the need for the 
claimant to submit any evidence in his possession that 
pertains to the claim.  Id.; but see VAOPGCPREC 1-2004.  

Recently, the Court held that for an increased-compensation 
claim, section § 5103(a) requires, at a minimum, that the 
Secretary notify the claimant that, to substantiate a claim, 
the claimant must provide, or ask the Secretary to obtain, 
medical or lay evidence demonstrating a worsening or increase 
in severity of the disability and the effect that worsening 
has on the claimant's employment and daily life.  Vazquez-
Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 
2008).  Further, if the Diagnostic Code under which the 
claimant is rated contains criteria necessary for entitlement 
to a higher disability rating that would not be satisfied by 
the claimant demonstrating a noticeable worsening or increase 
in severity of the disability and the effect that worsening 
has on the claimant's employment and daily life (such as a 
specific measurement or test result), the Secretary must 
provide at least general notice of that requirement to the 
claimant.  

Additionally, the claimant must be notified that, should an 
increase in disability be found, a disability rating will be 
determined by applying relevant Diagnostic Codes, which 
typically provide for a range in severity of a particular 
disability from noncompensable to as much as 100 percent 
(depending on the disability involved), based on the nature 
of the symptoms of the condition for which disability 
compensation is being sought, their severity and duration, 
and their impact upon employment and daily life.  As with 
proper notice for an initial disability rating and consistent 
with the statutory and regulatory history, the notice must 
also provide examples of the types of medical and lay 
evidence that the claimant may submit (or ask the Secretary 
to obtain) that are relevant to establishing entitlement to 
increased compensation-e.g., competent lay statements 
describing symptoms, medical and hospitalization records, 
medical statements, employer statements, job application 
rejections, and any other evidence showing an increase in the 
disability or exceptional circumstances relating to the 
disability.  Vazquez-Flores, slip op. at 5-6. 

In this case, taken together, the July 2004 VCAA letter, 
February 2005 statement of the case and June 2005 and October 
2007 supplemental statements of the case informed the veteran 
of the evidence necessary to substantiate his current 
appellate claim, what information and evidence he must 
submit, what information and evidence will be obtained by VA, 
and indicated the need for the veteran to advise VA of or to 
submit any evidence in his possession that was relevant to 
the case.  As such, this correspondence fully complied with 
the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. 
§ 3.159(b), as well as the holdings in Quartuccio, supra, and 
Vazquez-Flores, supra.  Moreover, the October 2007 
supplemental statement of the case included the specific 
information regarding disability rating(s) and effective 
date(s) mandated by the Court's holding in Dingess/Hartman v. 
Nicholson, 19 Vet. App. 473 (2006).  

The Board also finds that the RO has made reasonable and 
appropriate efforts to assist the appellant in obtaining the 
evidence necessary to substantiate his claim, including 
obtaining medical records identified by the appellant.  
Regarding affording the veteran examinations during the 
pendency of this appeal, the veteran was afforded 
examinations during the pendency of this appeal.  Also, the 
veteran was provided with the opportunity to attend a Board 
hearing which he attended in December 2006.  He has not 
indicated that any additional pertinent evidence exists, and 
there is no indication that any such evidence exists.  

Under these circumstances, the Board finds that VA has 
fulfilled its duty to notify and assist the appellant in the 
claim decided herein and that adjudication of the claim at 
this juncture, without directing or accomplishing any 
additional notification and/or development action, poses no 
risk of prejudice to the appellant.  See, e.g., Bernard v. 
Brown, 4 Vet. App. 384, 394 (1993).  The appeal is now ready 
to be considered on the merits.  

II.  Facts

In December 2003, the veteran filed a claim for service 
connection for hearing loss due to noise exposure in service.

On the authorized audiological evaluation in July 2004, pure 
tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
30
45
60
85
LEFT
15
20
25
50
55

Speech audiometry revealed speech recognition ability of 96 
percent in the right ear and 100 percent in the left ear.  
The veteran was diagnosed as having mild to profound mixed 
mixed hearing loss in the right ear and moderately-severe 
sensorineural hearing loss (3000Hz to 8000 Hz).

Results of a private audiogram performed in September 2004 at 
Deaf, Hearing & Sign Language Center were interpreted as 
revealing hearing within normal limits from 250Hz, then 
sloping to a moderate-severe sensorineural hearing loss from 
4000Hz to 8000Hz in the left ear.  The right ear revealed a 
mild mixed hearing loss from 250 Hz-2000 Hz, then sloping to 
a severe hearing loss from 3000-8000 Hz in the right ear.  
Speech recognition scores were 92 percent in the right and 
left ears.  

The record contains a statement from private audiologist Lisa 
Hamzik, M.S., CCC-A, and an Audiological Chart, both dated in 
May 2005.  The Audiological Chart is in graph form and 
contains an impression of mild to moderate/severe sloping 
conductive to mixed hearing loss with excellent speech 
recognition scores in the right ear and mild conductive to 
moderate/severe sensorineural hearing loss with excellent 
speech recognition scores.  

The veteran testified at a Board hearing in December 2006 
that his hearing loss had been gradually getting worse since 
his last VA examination in 2004 and he was no longer able to 
talk on the telephone.  

On the authorized audiological evaluation in June 2007, pure 
tone thresholds, in decibels, were as follows:






HERTZ



500
1000
2000
3000
4000
RIGHT
30
40
45
55
85
LEFT
25
30
35
50
55

Speech audiometry revealed speech recognition ability of 96 
percent in the right ear and 100 percent in the left ear.  
The veteran was diagnosed as having mild to severe mixed 
hearing loss in the right ear and mild to moderately severe 
sensorineural hearing loss in the left ear from 1000Hz to 
8000 Hz.

VA outpatient records in 2007 indicate that the veteran had a 
40 year history of hearing loss and that hearing aids had not 
been recommended.

III.  Analysis

Disability ratings are determined by the application of the 
Schedule For Rating Disabilities, which assigns ratings based 
on the average impairment of earning capacity resulting from 
a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. 
Part 4.  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.  38 C.F.R. § 4.7.  When after careful 
consideration of all procurable and assembled data, a 
reasonable doubt arises regarding the degree of disability 
such doubt will be resolved in favor of the claimant.  38 
C.F.R. § 4.3.

In order to evaluate the level of disability and any changes 
in condition, it is necessary to consider the complete 
medical history of the veteran's condition. Schafrath v. 
Derwinski, 1 Vet. App. 589, 594 (1991).  Where, as in the 
instant case regarding an increased rating claim, the appeal 
arises from the original assignment of a disability 
evaluation following an award of service connection, the 
severity of the disability at issue is to be considered 
during the entire period from the initial assignment of the 
disability rating to the present time.  See Fenderson v. 
West, 12 Vet. App. 119 (1999).

The severity of a hearing loss disability is determined by 
applying the criteria set forth at 38 C.F.R. § 4.85 (2007).  
Under these criteria, evaluations of bilateral hearing loss 
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 
audiometry tests in the frequencies 1,000, 2,000, 3,000 and 
4,000 cycles per second.  See 38 C.F.R. § 4.85 (2007).

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 (2007).  To evaluate 
an individual's level of disability, Table VI is used to 
assign a Roman numeral designation for hearing impairment 
based on a combination of the percent of speech 
discrimination and the pure tone threshold average.  38 
C.F.R. § 4.85(b) (2007). Table VII is used to determine the 
percentage evaluation by combining the Roman numeral 
designations for hearing impairment for each ear.  38 C.F.R. 
§ 4.85(e) (2007).

If puretone thresholds in each of the specified frequencies 
of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, 
an evaluation can be based either on Table VI or Table VIa, 
whichever results in a higher evaluation.  38 C.F.R. § 
4.86(a) (2007).

When the puretone threshold is 30 decibels or less at 1000 
Hertz and 70 decibels or more at 2000 Hertz, the Roman 
numeral designation for hearing impairment will be chosen 
from either Table VI or Table VIa, whichever results in the 
higher numeral, and that numeral will then be elevated to the 
next higher Roman numeral.  38 C.F.R. § 4.86(b) (2007).

VA audiology examination findings in July 2004 revealed that 
the average pure tone threshold at 1,000, 2,000, 3,000, and 
4,000 Hertz was 55 decibels in the right ear and 38 decibels 
in the left ear.  Speech recognition ability was 96 percent 
in the right ear and 100 percent in the left ear.  The 
audiological findings correspond to a level I hearing in the 
right ear and level I hearing in the left ear.  38 C.F.R. § 
4.85, Table VI (2007).  Under Table VII, a designation of 
level I hearing in the right ear and level I hearing in the 
left ear yields a noncompensable evaluation.  38 C.F.R. 
§ 4.85, Diagnostic Code 6100 (2007).

VA audiology examination findings in June 2007 revealed that 
the average pure tone threshold at 1,000, 2,000, 3,000, and 
4,000 Hertz was 56 decibels in the right ear and 43 decibels 
in the left ear.  Speech recognition ability was 96 percent 
in the right ear and 100 percent in the left ear.  The 
audiological findings correspond to a level I hearing in the 
right ear and level I hearing in the left ear.  38 C.F.R. § 
4.85, Table VI (2007).  Under Table VII, a designation of 
level I hearing in the right ear and level I hearing in the 
left ear yields a noncompensable evaluation.  38 C.F.R. 
§ 4.85, Diagnostic Code 6100 (2007).

Consideration has also been given to section 4.86 for 
exceptional patterns of hearing impairment, but this section 
is not applicable to the July 2004 or June 2007 examination 
findings.  Pure tone threshold levels were neither 55 dB or 
higher at each of the four frequencies, i.e., at 1000, 2000, 
3000 and 4000 hertz, nor were they 30 dB or less at 1,000 
hertz and 70 dB or more at 2000 Hz.  See 38 C.F.R. § 4.86(a) 
& (b).

The private audiological records from Deaf, Hearing & Sign 
Language Center in September 2004 and from audiologist Lisa 
Hamzik, M.S. CCC-A in May 2005 have also been considered, but 
are inadequate for rating purposes.  This is because the 
findings do not conform to the regulatory rating requirements 
for evaluating hearing impairment as specified under 
38 C.F.R. § 4.85.  

The Board in no way discounts the difficulties that the 
veteran experiences as a result of his hearing loss.  
However, as was explained above, the assignment of disability 
ratings for hearing impairment is derived by a mechanical 
application of the rating schedule to the numeric designation 
assigned after audiometry results are obtained.  Hence, the 
Board has no discretion in this matter and must predicate its 
determination on the basis of the results of the audiology 
studies of record.  See Lendenmann v. Principi, 3 Vet. App. 
345 (1992).  In other words, the Board is bound by law to 
apply VA's rating schedule based on the veteran's audiometry 
results.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

Also, the Board finds that the veteran's hearing loss is not 
so unusual or exceptional as to render impractical the 
application of the regular schedular standards. 38 C.F.R. § 
3.321(b)(1).  In this regard, the Board notes that the 
veteran's bilateral hearing loss has not necessitated 
frequent periods of hospitalization and there is no objective 
evidence that it resulted in marked interference with his 
employment.

For the foregoing reasons, the veteran's claim for an initial 
compensable evaluation for bilateral hearing loss must be 
denied from the date of the grant of service connection.  In 
reaching this conclusion, the Board has considered the 
applicability of the benefit-of-the-doubt doctrine.  However, 
as the preponderance of the evidence is against the veteran's 
claim, that doctrine is not applicable in the instant appeal. 
See 38 U.S.C.A. § 5107 (West 2002).


ORDER

Entitlement to an initial compensable evaluation for 
bilateral hearing loss is denied.



____________________________________________
C. TRUEBA
Acting Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs