Citation Nr: 0810773	
Decision Date: 04/01/08    Archive Date: 04/14/08

DOCKET NO.  04-18 644	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, 
Georgia


THE ISSUE

Entitlement to an initial compensable evaluation for 
bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Joseph R. Keselyak, Associate Counsel




INTRODUCTION

The veteran served on active duty from August 1969 to 
November 1971, with 21 years prior additional service.

This matter comes to the Board of Veterans' Appeals (Board) 
from an October 2003 rating decision of the Department of 
Veterans Affairs (VA) Regional Office (RO) in Atlanta, 
Georgia that granted service connection for bilateral hearing 
loss and assigned a noncompensable rating, effective from 
June 25, 2003.  

This matter was last before the Board in November 2006 when 
it was remanded for further development.  That development 
has been completed and the issue on appeal is now ready for 
adjudication. 


FINDING OF FACT

At worst, the veteran has hearing loss in the right ear with 
a Numeric Designation of I and hearing loss in the left ear 
with a Numeric Designation of II.


CONCLUSION OF LAW

Criteria for a compensable rating for bilateral hearing loss 
have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 
§§ 3.321, 4.1-4.16, 4.85, Diagnostic Code 6100 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Notice and Assistance

Upon receipt of a complete or substantially complete 
application, VA must notify the claimant of the information 
and evidence not of record that is necessary to substantiate 
a claim, which information and evidence VA will obtain, and 
which information and evidence the claimant is expected to 
provide.  38 U.S.C.A. § 5103(a).  VA must request that the 
claimant provide any evidence in the claimant's possession 
that pertains to a claim.  38 C.F.R. § 3.159.

The notice requirements apply to all five elements of a 
service connection claim: 1) veteran status; 2) existence of 
a disability; 3) a connection between the veteran's service 
and the disability; 4) degree of disability; and 5) effective 
date of the disability.  Dingess v. Nicholson, 19 Vet. App. 
473 (2006).

The notice must be provided to a claimant before the initial 
unfavorable adjudication by the RO.  Pelegrini v. Principi, 
18 Vet. App.112 (2004).

The notice requirements may be satisfied if any errors in the 
timing or content of such notice are not prejudicial to the 
claimant.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 
2006).  

The RO provided the appellant with notice by letters dated in 
August 2003 and December 2006.  The notification 
substantially complied with the requirements of Dingess v. 
Nicholson, 19 Vet. App. 473 (2006), identifying the five 
elements of a service connection claim, and Pelegrini v. 
Principi, 18 Vet. App. 112 (2004), requesting the claimant to 
provide evidence in his or her possession that pertains to 
the claims.

In this case, the veteran was awarded service connection for 
hearing loss and assigned a disability rating and an 
effective date in the October 2003 rating decision on appeal.  
Thus, the claim was substantiated in October 2003.  
Therefore, following that decision, VA had no further duty to 
notify the veteran how to substantiate his claim pursuant to 
38 U.S.C.A. § 5103(a) or 38 C.F.R. § 3.159 (b); the purpose 
of the notice had been served.  See Dingess, 19 Vet. App. at 
493.

The Board notes that none of the notice letters provided 
included the criteria for an increased rating.  See 
Quartuccio v. Principi, 16 Vet. App. 183 (2002); Vasquez-
Flores v. Peake, 22 Vet. App. 37 (2008).  

Any error by VA in providing the notice required by 38 U.S.C. 
§ 5102(a) and 38 C.F.R. § 3.159(b)(1) is presumed 
prejudicial, and once an error is identified as to any of the 
four notice elements the burden shifts to VA to demonstrate 
that error was not prejudicial to the appellant.  Sanders v. 
Nicholson, 487 F.3d 881 (Fed. Cir. 2007).  

The Board finds, however, that any content-related notice 
errors did not affect the essential fairness of the 
adjudication of the claim decided herein.  The veteran was 
provided with a statement of the case (SOC) in April 2004, 
which identified the criteria for hearing loss disability 
ratings at each level.  In a November 2006 written argument 
submitted by the veteran's representative, the representative 
specifically referred to the results of audiometric testing 
and the application of the rating criteria.  This 
demonstrates that the veteran, or someone acting on his 
behalf, had actual knowledge of the evidence needed to 
substantiate his claim, of the right to submit additional 
evidence, and of the availability of additional process.  
Thus, the Board finds that no prejudice to the veteran will 
result from proceeding with adjudication without additional 
notice or process.  Id.  

VA has obtained service medical records (SMRs), assisted the 
veteran in obtaining evidence, afforded the veteran physical 
examinations, and obtained medical opinions as to the 
etiology and severity of disabilities.  All known and 
available records relevant to the issues on appeal have been 
obtained and associated with the veteran's claim file; and 
the veteran has not contended otherwise.

VA has substantially complied with the notice and assistance 
requirements and the veteran is not prejudiced by a decision 
on the claim at this time.  

Analysis

Disability evaluations are determined by the application of a 
schedule of ratings, which is based on average impairment of 
earning capacity.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 
Part 4 (2007).  Separate rating codes identify the various 
disabilities.  38 C.F.R. Part 4.  Where there is a question 
as to which of two evaluations shall 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.  38 C.F.R. § 
4.7.  Any reasonable doubt regarding the degree of disability 
is resolved in favor of the veteran.  38 C.F.R. § 4.3.

The VA schedule of ratings will apply unless there are 
exceptional or unusual factors which would render application 
of the schedule impractical.  See Fisher v. Principi, 4 Vet. 
App. 57, 60 (1993).  38 C.F.R. Section 3.321(b)(1) provides 
that, in exceptional circumstances, where the schedular 
evaluations are found to be inadequate, the veteran may be 
awarded a rating higher than that encompassed by the 
schedular criteria.  According to the regulation, an 
extraschedular disability rating is warranted upon a finding 
that "the case presents such an exceptional or unusual 
disability picture with such related factors as marked 
interference with employment or frequent periods of 
hospitalization that would render impractical the application 
of the regular schedular standards."  Id.

Where entitlement to compensation 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.  See Francisco v. Brown, 7 Vet. App. 55, 58 
(1994).  In addition, an appeal from the initial assignment 
of a disability rating requires consideration of the entire 
time period involved, and contemplates "staged ratings" 
where warranted.  See Fenderson v. West, 12 Vet. App. 119 
(1999).  

The veteran's service-connected bilateral hearing loss is 
currently rated as zero percent disabling under 38 C.F.R. §§ 
4.85, 4.86, Diagnostic Code 6100.  The rating assigned for 
hearing loss is determined by a mechanical application of the 
rating schedule, which is grounded on numeric designations 
assigned to audiometric examination results.  Lendenmann v. 
Principi, 3 Vet. App. 345, 349 (1992).

In support of his claim, the veteran has submitted a June 
1999 audiological examination report from a private 
physician, Dr. Zoller, which is in graphic, rather than 
numeric form.  The Board is precluded from interpreting 
graphical representations of audiometric data and thus may 
not apply these graphic results to the criteria of 38 C.F.R. 
§ 3.385 in order to determine the severity of the veteran's 
bilateral hearing loss disability.  See Kelly v. Brown, 7 
Vet. App. 471 (1995). 

On VA audiological testing in February 2002, pure tone 
thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
30
45
60
65
LEFT
20
30
40
65
70

Pure tone averages were 50 for the right ear and 51 for the 
left ear.  Speech audiometry revealed speech recognition 
ability of 96 percent in the right ear and of 92 percent in 
the left ear.

On VA audiological testing in September 2003, pure tone 
thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
35
55
65
LEFT
10
15
35
65
75

Pure tone averages were 40 for the right ear and 48 for the 
left ear.  Speech audiometry revealed speech recognition 
ability of 96 percent in the right ear and of 92 percent in 
the left ear.

On VA audiological testing in April 2007, pure tone 
thresholds, in decibels, were as follows:






HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
45
65
70
LEFT
10
20
40
65
75

Pure tone averages were 48 for the right ear and 50 for the 
left ear.  Speech audiometry revealed speech recognition 
ability of 94 percent in the right ear and of 84 percent in 
the left ear.

Evaluations of hearing impairment range from 0 to 100 percent 
based on organic impairment of hearing acuity.  Auditory 
acuity is gauged by examining the results of controlled 
speech discrimination tests, together with the results of 
puretone audiometric tests in the frequencies of 1000, 2000, 
3000, and 4000 Hertz.  To evaluate the degree of disability, 
the rating schedule establishes 11 auditory acuity levels 
ranging from level I, for essentially normal acuity, through 
level XI, for profound deafness.  Tables VI and VII are used 
to calculate the rating to be assigned. 38 C.F.R. § 4.85 
(2007).

Under 38 C.F.R. § 4.86, when the puretone threshold at each 
of the four specified frequencies of 1000, 2000, 3000, and 
4000 Hertz is 55 decibels or more, Table VI or Table VIa is 
to be used, whichever results in the higher numeral.  38 
C.F.R. § 4.86(a).  Additionally, when the puretone threshold 
is 30 decibels or less at 1,000 Hertz, and 70 decibels or 
more at 2,000 Hertz, Table VI or Table VIa is to be used, 
whichever results in the higher numeral.  Thereafter, that 
numeral will be elevated to the next higher Roman numeral.  
38 C.F.R. § 4.86(b) (2007).

A compensable evaluation for the veteran's bilateral hearing 
loss is not warranted under the circumstances.  With respect 
to results of the audiological evaluations listed above, the 
Numeric Designations for the veteran's right and left ear 
hearing loss, at worst, are I and II, respectively.  
38 C.F.R. § 4.85, Table VI.  These numerical designations, 
when applied to 38 C.F.R. § 4.85 Table VII, yield a 
noncompensable evaluation.  None of the puretone thresholds 
is 30 decibels or less at 1,000 Hertz, and 70 decibels or 
more at 2,000 Hertz, therefore consideration under the 
highest numerical designation under either Table VI or Table 
VIa is not appropriate.  Accordingly, the claim must be 
denied.

The veteran had disputed the adequacy of the VA audiometric 
examinations because they were performed in a controlled 
testing environment.  The Board points out, however, that 
conducting audiometric testing of hearing loss claimants in a 
sound-controlled room is valid.  Martinak v. Nicholson, 21 
Vet. App. 447 (2007).

The veteran has, through his appointed representative, 
requested referral for an extrascheduar rating.  The VA 
schedule of ratings will apply unless there are exceptional 
or unusual factors which would render application of the 
schedule impractical.  See Fisher v. Principi, 4 Vet. App. 
57, 60 (1993); 38 C.F.R. § 3.321(b) (2007).  The governing 
norm in these exceptional cases is: A finding that the case 
presents such an exceptional or unusual disability picture 
with such related factors as marked interference with 
employment or frequent periods of hospitalization as to 
render impractical the application of the regular schedular 
standards.  Id.

The veteran's representative has asserted that VA must 
consider other factors than interference with employment and 
frequent periods of hospitalization in determining whether 
extraschedular referral is warranted.  Nonetheless, the 
veteran's representative points to no other factors for the 
Board to consider and the Board finds no other such factors 
in the record.  The record is devoid of any showing that the 
veteran's service-connected bilateral hearing loss has ever 
caused any interference with employment or frequent periods 
of hospitalization.  The veteran has been prescribed hearing 
aids, which the Board finds is a usual circumstance of 
hearing loss.  Under these circumstances, the Board does not 
find that extraschedular referral is warranted.  




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ORDER

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




____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs