Citation Nr: 0811948	
Decision Date: 04/10/08    Archive Date: 04/23/08

DOCKET NO.  05-08 093	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, 
Mississippi


THE ISSUE

Entitlement to an increased (compensable) rating for hearing 
loss in the left ear, status-post left stapedectomy.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


WITNESSES AT HEARING ON APPEAL

The veteran and his spouse


ATTORNEY FOR THE BOARD

Van Stewart, Counsel


INTRODUCTION

The veteran had active military service from January 1956 to 
July 1979.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal of a May 2004 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Jackson, Mississippi.

At a May 2006 hearing before the undersigned Veterans Law 
Judge, the veteran submitted evidence in support of his 
claim.  The veteran waived consideration of the evidence by 
the agency of original jurisdiction (AOJ).  See Disabled Am. 
Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. 
Cir. 2003).  


FINDING OF FACT

The veteran's left ear hearing loss does not warrant a 
compensable rating.


CONCLUSION OF LAW

The criteria for an increased (compensable) rating for the 
veteran's let ear hearing loss have not been met.  
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.383, 4.1, 4.7, 
4.85, Diagnostic Code 6100, 4.86 (2007).  


REASONS AND BASES FOR FINDING AND CONCLUSION

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.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).  

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his representative of any information, and any 
medical or lay evidence, that is necessary to substantiate 
the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The VCAA 
notice must inform the claimant of any information and 
evidence not of record (1) that is necessary to substantiate 
the claim; (2) that VA will seek to provide; (3) that the 
claimant is expected to provide; and (4) must ask the 
claimant to provide any evidence in his possession that 
pertains to the claim in accordance with 38 C.F.R. 
§ 3.159(b)(1).  VCAA notice should be provided to a claimant 
before the initial unfavorable agency of original 
jurisdiction (AOJ) decision on a claim.  Pelegrini v. 
Principi, 18 Vet. App. 112 (2004).  But see Mayfield v. 
Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other 
grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 
2006) (when VCAA notice follows the initial unfavorable AOJ 
decision, subsequent RO actions may "essentially cure[] the 
error in the timing of notice").  

For an increased-compensation claim, section § 5103(a) 
requires, at a minimum, that VA notify the claimant that, to 
substantiate a claim, he must provide, or ask VA 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. Jan. 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.  The notice 
must also provide examples of the types of medical and lay 
evidence that the claimant may submit or ask VA to obtain 
that are relevant to establishing entitlement to increased 
compensation.  Vazquez-Flores, slip op. at 5-6. 

The Board notes that the veteran was apprised of VA's duties 
to both notify and assist in correspondence dated in March 
2004 and April 2007.  (Although the complete notice required 
by the VCAA was not provided until after the RO adjudicated 
the appellant's claims, any timing errors have been cured by 
the RO's subsequent actions.  Id.)

Specifically regarding VA's duty to notify, the notifications 
to the veteran apprised him of what the evidence must show to 
establish entitlement to the benefit sought, what evidence 
and/or information was already in the RO's possession, what 
additional evidence and/or information was needed from the 
veteran, what evidence VA was responsible for getting, and 
what information VA would assist in obtaining on the 
veteran's behalf.  The RO specifically requested that the 
veteran submit any evidence he had pertaining to his claim.  
The veteran was apprised of the criteria for assigning 
disability ratings and for award of an effective date.  See 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The 
RO also provided a statement of the case (SOC) and a 
supplemental statement of the case (SSOC) reporting the 
results of its reviews of issues on appeal and the text of 
the relevant portions of the VA regulations.  

As regards VA's duty to notify, as recently enunciated by the 
Court in Vasquez-Flores, supra, the Board notes that the 
agency of original jurisdiction (AOJ) notified the veteran 
that evidence to be considered would include the effect that 
the worsening of his hearing loss symptoms has on his 
employment.  While the AOJ did not notify him that 
consideration would also be given to the effect that the 
worsening of his hearing loss symptoms has on his daily life, 
the Board finds that the veteran had actual knowledge of this 
as evidenced by his having submitted numerous buddy 
statements, most of which aver that they have observed 
hearing loss in the veteran in daily life situations such as 
normal conversation.  In any event, the Board observes that 
hearing loss for VA compensation purposes is determined by a 
mechanical application of numeric designations assigned to 
audiometric examination results, which are then applied to 
the tables found in the rating schedule, and that the Court 
has found that VA's policy regarding audiological 
examination, including the use of sound-proof testing booths, 
is not clearly erroneous.  Martinak v. Nicholson, 21 Vet. 
App. 447, 454 (2007).  

The AOJ has provided the veteran with examples of the types 
of medical and lay evidence that the claimant may submit or 
ask VA to obtain that are relevant to establishing 
entitlement to increased compensation.  Moreover, the veteran 
was provided a detailed explanation of the rating criteria 
for evaluating his hearing loss.  Vazquez-Flores, supra.  
Although this information was provided after his claim was 
initially adjudicated, such criteria were set forth in the 
statement of the case, which specifically placed the veteran 
on notice of the specifics of how his claim was rated.  
Nothing about the veteran's responses to the various 
notifications suggests that the case must be returned to the 
AOJ for further notification.

Regarding VA's duty to assist, the RO obtained the veteran's 
service medical records (SMRs), VA and private medical 
records, and secured several examinations in furtherance of 
his claim.  The veteran was afforded both a hearing at the 
RO, and a travel Board hearing before the undersigned Board 
member.  VA has no duty to inform or assist that was unmet.

The veteran was service connected for hearing loss in the 
left ear in a rating decision dated in April 1980, evaluated 
as non-compensable (zero percent disabling).  He submitted a 
claim for a compensable rating in March 2001, contending that 
his hearing had been getting worse.  

Of record is the report of a June 2001VA audiological 
evaluation that revealed that puretone thresholds, in 
decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
5
10
25
45
LEFT
10
40
55
60
60

Speech audiometry revealed speech recognition ability of 96 
percent in the right ear and of 88 in the left ear.  

Also of record is the report of a private audiological 
evaluation given in December 2003 that revealed that puretone 
thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
25
50
60
LEFT
30
50
60
70
80

Speech audiometry was recorded, but, because it is not 
identified as being based on the Maryland CNC, it cannot be 
used to evaluate the veteran's hearing loss for VA 
compensation purposes.  38 C.F.R. § 4.85(a).  

The veteran was afforded another VA audiological evaluation 
in April 2004.  That examination revealed that puretone 
thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
15
25
45
55
LEFT
35
55
70
70
75

Speech audiometry revealed speech recognition ability of 94 
percent in the right ear and of 44 percent in the left ear.

On remand, the veteran was afforded another audiological 
evaluation, given in June 2007, which reported that puretone 
thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
45
50
65
75
LEFT
60
70
75
75
85

Speech audiometry revealed speech recognition ability of 96 
percent in the right ear and of 76 percent in the left ear.  
The examiner determined that the veteran's hearing loss was 
sensorineural, and noted that the veteran complained that his 
greatest difficulty as regards his hearing occurred when in a 
crowd.  

Defective hearing is rated in accordance with the criteria 
set forth in 38 C.F.R. §§ 4.85, 4.86.  In evaluating the 
veteran's hearing loss, the Board notes that hearing loss 
evaluations are determined by a mechanical application of the 
rating schedule, which is grounded on numeric designations 
assigned to audiometric examination results.  See, e.g, 
Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1999).  Ratings 
range from zero 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 rate 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.  
38 C.F.R. § 4.85.  When an examiner certifies that use of the 
speech discrimination test is not appropriate because of, for 
example, inconsistent speech discrimination scores, the 
degree of disability is to be based only on puretone 
threshold averages utilizing Table VIA, Numeric Designation 
of Hearing Impairment Based Only on Puretone Threshold 
Average.  38 C.F.R. § 4.85(c), Table VI.

Since later VA audiological examination results showed non-
compensable hearing loss that is worse than shown on the June 
2001 examination, the June 2001 results will not be discussed 
here.  

Regarding the results of the private examination given in 
December 2003, since the speech discrimination is not known 
to be based on the Maryland CNC, rating of the veteran's 
hearing disability based on the December 2003 private 
examination will be determined on the basis of puretones 
alone.  See 38 C.F.R. § 4.85(c).  

Entering Table VIA with the December 2003 examination 
results, the left ear average puretone threshold was 65, 
yielding a numeric score of level V.  See Table VIA, below, 
replicated from 38 C.F.R. § 4.85.     

Table VIA 
Numeric Designation of Hearing Impairment Based Only on 
Puretone Threshold Average
0-41
42-
48
49-
55
56-
62
63-
69
70-
76
77-
83
84-
90
91-
97
98-
104
105+
I
II
III
IV
V
VI
VII
VIII
IX
X
XI

The veteran is not service connected for hearing loss in the 
right ear.  Therefore, in accordance with the VA regulation 
governing evaluation of a monaural hearing loss, the non-
service-connected ear is assigned a Roman Numeral designation 
of I.  38 C.F.R. § 4.85(f).  (Compensation is payable for the 
combination of service-connected hearing loss in one ear and 
non-service-connected hearing loss in the other ear as if 
both were service connected when hearing impairment in the 
service-connected ear is compensable to a degree of 10 
percent or more and hearing impairment in the other, non-
service-connected, ear meets the provisions of 38 C.F.R. 
§ 3.385.  38 C.F.R. § 3.383 (2007).  Here, hearing loss in 
the right ear meets the provisions of § 3.385 on account of 
increased thresholds, but as explained below, hearing loss in 
the service-connected ear does not reach a compensable 
level.)  

Entering Table VII (abbreviated below from 38 C.F.R. § 4.85) 
with the above results (better ear level score of I; poorer 
ear level score of V) shows that, based on the December 2003 
private examination results, the level of the veteran's 
percentage of hearing impairment is 0 percent, or non-
compensable.  

Table VII
B
e
t
t
e
r 
E
a
r
V
40
40
40
30
30
20
20
 
 
 
 

IV
30
30
30
20
20
20
10
10
 
 
 

III
20
20
20
20
20
10
10
10
0
 
 

II
10
10
10
10
10
10
10
0
0
0
 

I
10
10
0
0
0
0
0
0
0
0
0 
 
XI
X
IX
VII
I
VI
I
VI
V
IV
II
I
II
I

Poorer Ear
 

Turning to the results of the April 2004 VA audiological 
examination, Table VI (abbreviated below) is entered with the 
left ear puretone threshold average of 68 percent and 
discrimination of 44, yielding a numeric score of level VIII.  
Again, the non-service-connected right ear is assigned a 
Roman Numeral designation of I.  38 C.F.R. § 4.85(f).   

% of 
discri
m- 
inatio
n
Table VI - Puretone Threshold Average

0-
41
42-
49
50-
57
58-
65
66-
73
74-
81
82-
89
90-
97
98
+
52-58
VI
VI
VII
VII
VIII
VIII
VIII
VIII
IX 
44-50
VII
VII
VIII
VIII
VIII
IX
IX
IX
X 
36-42
VII
I
VIII
VIII
IX
IX
IX
X
X
X 

The Board must also consider the provisions of 38 C.F.R. 
§ 4.86, which offers the possibility of a higher evaluation 
when exceptional patterns of hearing loss are present.  
Exceptional patterns are those where the puretone thresholds 
at each of the four evaluated frequencies (1000, 2000, 3000, 
and 4000 Hertz) is 55 decibels or more, or where the puretone 
threshold at 1000 Hertz is 30 decibels or less and the 
puretone threshold at 2000 Hertz is 70 decibels or more.  
When an exceptional pattern exists, the Roman numeral 
designation will be determined by using both Table VI and 
Table VIA, and using the higher resulting numeral in 
evaluating the veteran's hearing loss.   As can be seen, the 
veteran's puretone thresholds at each of the four evaluated 
frequencies were 55 decibels or more, showing an exceptional 
pattern exists.  Entering Table VIA, replicated below, with 
left ear puretone threshold average of 68, the result is a 
Roman numeral of V.  

Table VIA 
Numeric Designation of Hearing Impairment Based Only on 
Puretone Threshold Average
0-41
42-
48
49-
55
56-
62
63-
69
70-
76
77-
83
84-
90
91-
97
98-
104
105+
I
II
III
IV
V
VI
VII
VIII
IX
X
XI

Thus, the Roman numeral VIII derived from Table VI is the 
higher of the two, and will be used here to evaluate the 
veteran's current left ear hearing loss based on the April 
2004 VA examination.  

Entering Table VII (abbreviated below) with the above results 
(better ear level score of I; poorer ear level score of VIII) 
shows that the level of the veteran's compensable hearing 
loss evaluation is 0 percent, or non-compensable, based on 
the findings of the veteran's April 2004 VA audiological 
examination.  

Table VII
B
e
t
t
e
r 
E
a
r
V
40
40
40
30
30
20
20
 
 
 
 

IV
30
30
30
20
20
20
10
10
 
 
 

III
20
20
20
20
20
10
10
10
0
 
 

II
10
10
10
10
10
10
10
0
0
0
 

I
10
10
0
0
0
0
0
0
0
0
0 
 
XI
X
IX
VII
I
VI
I
VI
V
IV
II
I
II
I

Poorer Ear
 

Turning to the results of the June 2007 examination, entering 
Table VI with the left ear average puretone threshold average 
of 76.25 and percent of discrimination of 76 yields a numeric 
score of level V.  Again, because the veteran is not service 
connected for hearing loss in the right ear, that ear is 
assigned a Roman Numeral designation of I.  

% of 
discri
m- 
inatio
n
Table VI - Puretone Threshold Average

0-
41
42-
49
50-
57
58-
65
66-
73
74-
81
82-
89
90-
97
98
+
84-90
II
II
II
III
III
III
IV
IV
IV 
76-82
III
III
IV
IV
IV
V
V
V
V 
68-74
IV
IV
V
V
VI
VI
VII
VII
VI
I 

Evaluating again the exceptional patterns of hearing loss, 
entering Table VIA, with left ear puretone threshold average 
of 76.25, the result is no better than a Roman numeral of 
VII, even if the puretone average were to be rounded up.   

Table VIA 
Numeric Designation of Hearing Impairment Based Only on 
Puretone Threshold Average
0-41
42-
48
49-
55
56-
62
63-
69
70-
76
77-
83
84-
90
91-
97
98-
104
105+
I
II
III
IV
V
VI
VII
VIII
IX
X
XI

Thus, the Roman numeral VII derived from Table VIA is the 
higher of the two, and is used to evaluate the veteran's left 
ear hearing loss based on the June 2007 examination.  

Entering Table VII (abbreviated below) with the above results 
(better ear level score of I; poorer ear level score of VII) 
shows that the level of the veteran's compensable hearing 
loss evaluation is again 0 percent, or non-compensable, based 
on the findings of the veteran's June 2007 VA audiological 
examination.  

Table VII
B
e
t
t
e
r 
E
a
r
V
40
40
40
30
30
20
20
 
 
 
 

IV
30
30
30
20
20
20
10
10
 
 
 

III
20
20
20
20
20
10
10
10
0
 
 

II
10
10
10
10
10
10
10
0
0
0
 

I
10
10
0
0
0
0
0
0
0
0
0 
 
XI
X
IX
VII
I
VI
I
VI
V
IV
II
I
II
I

Poorer Ear
 

Thus, none of the veteran's audiological examinations shows 
that a compensable rating is warranted for the veteran's left 
ear hearing loss disability.  

In deciding this issue the Board has considered the 
provisions of 38 U.S.C.A. § 5107 (benefit of the doubt).  
Under the of benefit-of-the-doubt standard, when a veteran 
seeks benefits and the evidence is in relative equipoise 
regarding any issue material to the determination of a 
matter, the law dictates that the benefit of any doubt 
belongs to the veteran.  38 U.S.C.A. § 5107; 38 C.F.R. § 
3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).  
However, where, as here, the rating criteria are determined 
by a mechanical application of numeric designations assigned 
to audiometric examination results, which are then applied to 
the tables found in the rating schedule, the benefit-of-the-
doubt standard is not applicable in determining this issue.  
In short, the numbers are determinative, and the concept of 
equipoise is not for application here.  

Based on the foregoing analysis and the mechanical 
application of the rating schedule, the Board finds that 
award of a compensable rating for the veteran's service-
connected left ear hearing disability is not warranted, and 
has not been warranted at any stage of this claim.  See Hart 
v. Mansfield, 21 Vet. App 505 (2007) (staged ratings are 
appropriate for an increased-rating claim when the factual 
findings show distinct time periods where the service-
connected disability exhibits symptoms that would warrant 
different ratings).  


ORDER

Entitlement to an increased (compensable) rating for hearing 
loss in the left ear, status-post left stapedectomy, is 
denied.



________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs