Citation Nr: 0812631	
Decision Date: 04/16/08    Archive Date: 05/01/08

DOCKET NO.  06-13 431	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to an initial compensable evaluation for 
bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

Ann-Monique Clark, Associate Counsel


INTRODUCTION

The veteran had active service from August 1960 until May 
1964.              

This matter comes before the Board of Veterans' Appeals (BVA 
or Board) from a rating decision of the Department of 
Veterans Affairs (VA), Regional Office (RO) in Waco, Texas.  

It is noted that veteran requested a BVA hearing in his April 
2006 substantive appeal. However, in an October 2007 
communication he withdrew his request.  


FINDING OF FACT

Throughout the rating period on appeal, the veteran's 
bilateral hearing loss was manifested by no more than Level V 
in right ear, and no more than Level I in left ear. 


CONCLUSION OF LAW

The criteria for an initial compensable evaluation for 
bilateral hearing loss have not been met.  38 U.S.C.A. 
§§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. 
§§ 3.102, 3.159, 4.85, 4.86, Diagnostic Code (DC) 6100 
(2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Disability ratings are determined by applying the criteria 
set forth in the VA's Schedule for Rating Disabilities 
(rating schedule), which is based upon the average impairment 
of earning capacity.  Individual disabilities are assigned 
separate diagnostic codes.  See 38 C.F.R. § 4.1 (2007).  

In determining whether a claimed benefit is warranted, VA 
must determine whether the evidence supports the claim or is 
in relative equipoise, with the veteran prevailing in either 
event, or whether the preponderance of the evidence is 
against the claim, in which case the claim is denied.  
38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 
(1990).  Moreover, an appeal from the initial assignment of a 
disability rating, such as this case, requires consideration 
of the entire time period involved, and contemplates 
"staged" ratings where warranted.  See Fenderson v. West, 
12 Vet. App. 119 (1999).

Throughout the rating period on appeal, the veteran is 
assigned a noncompensable evaluation for bilateral hearing 
loss.  

In evaluating service-connected hearing loss, disability 
ratings are derived by a mechanical application of the rating 
schedule to the numeric designations assigned after 
audiometric evaluations are performed.  Lendenmann v. 
Principi, 3 Vet. App. 345, 349 (1992).  Hearing loss 
disability evaluations range from noncompensable to 
100 percent based on organic impairment of hearing acuity, as 
measured by controlled speech discrimination tests in 
conjunction with the average hearing threshold, and as 
measured by puretone audiometric tests in the frequencies 
1,000, 2,000, 3,000 and 4,000 cycles per second.  

The rating schedule for hearing loss establishes 11 auditory 
acuity levels designated from Level I for essentially normal 
hearing acuity, through Level XI for profound deafness.  VA 
audiometric examinations are conducted using a controlled 
speech discrimination test together with the results of a 
puretone audiometry test.  The horizontal lines in Table VI 
(38 C.F.R. § 4.85) represent nine categories of the 
percentage of discrimination based on the controlled speech 
discrimination test.  The vertical columns in Table VI 
represent nine categories of decibel loss based on the pure 
tone audiometry test.  

The numeric designation of impaired hearing (Levels I through 
XI) is determined for each ear by intersecting the horizontal 
row appropriate for the percentage of discrimination and the 
vertical column appropriate to the puretone decibel loss. 

The percentage disability evaluation is found from Table VII 
(38 C.F.R. § 4.85) by intersecting the horizontal column 
appropriate for the numeric designation for the ear having 
the better hearing acuity and the vertical  row appropriate 
to the numeric designation level for the ear having the 
poorer hearing acuity.  For example, if the better ear has a 
numeric designation Level of "V" and the poorer ear has a 
numeric designation Level of "VII," the percentage evaluation 
is 30 percent.  38 C.F.R. §§ 4.85(b), 4.87 (2007).  

Additionally, under 38 C.F.R. § 4.86(a), 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 
will be evaluated separately.  

Under 38 C.F.R. § 4.86(b), when the pure tone threshold is 
30 decibels or less at 1,000 hertz, and 70 decibels or more 
at 2,000 hertz, the rating specialist will determine the 
Roman numeral designation for hearing impairment from either 
Table VI or Table VIa, whichever results is the higher 
numeral.  That numeral will then be elevated to the next 
higher Roman numeral.  Each ear will be evaluated separately. 

In the present case, the veteran underwent a VA audiological 
examination in December 2004.  This examination revealed the 
following puretone thresholds, in decibels:




HERTZ



500
1000
2000
3000
4000
RIGHT

50
65
65
70
LEFT

40
45
50
45

On the basis of the findings shown above, the veteran's 
puretone average for the right ear was recorded as 63 
decibels.  His puretone average for the left ear was recorded 
as 45 decibels.  Speech recognition was 86 percent for the 
right ear at 80 decibels, 82 percent at 85 decibels, 76 
percent at 90 decibels and 94 percent for the left ear at 75 
decibels.  

A subsequent VA audiological examination in June 2006 
revealed the following puretone thresholds, in decibels:







HERTZ



500
1000
2000
3000
4000
RIGHT

55
70
70
70
LEFT

40
50
55
50

On the basis of the evidence shown above, the veteran's 
puretone average for the right ear was recorded as 66 
decibels.  His puretone average for the left ear was recorded 
as 49 decibels.  Speech recognition was 88 percent for the 
right ear and 96 percent for the left ear. 

The audiometric findings revealed in June 2006 reflect a 
greater degree of hearing loss than the 2004 findings, as 
indicated by the higher puretone averages for each ear.  
However, even considering the June 2006 audiometric results, 
an increased evaluation is not warranted here.

Applying the findings of the June 2006 VA examination to the 
rating criteria for hearing impairment, the Board finds that 
the criteria for an initial compensable evaluation for 
bilateral hearing loss have not been met.  Considering that 
the veteran's right ear manifests an average puretone 
threshold of 66 decibels, with a 88 percent speech 
discrimination, reference to 38 C.F.R. § 4.85, Table VI, 
shows his right ear hearing loss to be Level III impairment.  
However, because his right ear shows an exceptional pattern 
of hearing impairment under Table VIA, it can be categorized 
as a Level V hearing loss. 38 C.F.R. 4.86(a) (2007).  

Moreover, considering that the veteran's left ear manifests 
an average pure tone threshold of 49 decibels, and 96 percent 
speech discrimination, reference to 38 C.F.R. § 4.85, Table 
VI, shows the veteran's left ear hearing loss to be that of 
Level I impairment.  Applying these results to Table VII, a 
noncompensable evaluation is assigned.  

The Board is limited in evaluating hearing loss to the 
mechanical application of the rating schedule under the 
specified testing methods.  For example, any impact of the 
hearing loss on the veteran's daily life cannot be accounted 
for outside the rating tables of 38 C.F.R. § 4.85.  The 
noncompensable evaluation currently assigned for his 
bilateral hearing loss accurately reflects his disability 
picture as contemplated under the VA rating criteria 
throughout the rating period on appeal. 

In sum, there is no support for a compensable evaluation for 
bilateral hearing loss for any portion of the rating period 
on appeal.  Without an approximate balance of positive and 
negative evidence that would give rise to a reasonable doubt 
in favor of the appellant receiving an increased rating, the 
benefit of the doubt rule is not applicable.  See 38 U.S.C.A. 
§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 
(1990).    

Finally, as provided for by the Veterans Claims Assistance 
Act of 2000 (VCAA), VA has a 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).  

Proper notice from VA must inform the claimant of any 
information and medical or lay 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 her or his possession that pertains to the claim 
in accordance with 38 C.F.R. § 3.159(b)(1).  Quartuccio v. 
Principi, 16 Vet. App. 183 (2002).  This notice must be 
provided prior to an initial unfavorable decision on a claim 
by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 
2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In addition, the notice requirements of the VCAA apply to all 
five elements of a service-connection claim, including: (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.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 
473 (2006).  Further, this notice must include information 
that a disability rating and an effective date for the award 
of benefits will be assigned if service connection is 
awarded.  Id. at 486.  

VCAA notice errors are presumed prejudicial unless VA shows 
that the error did not affect the essential fairness of the 
adjudication.  To overcome the burden of prejudicial error, 
VA must show (1) that any defect was cured by actual 
knowledge on the part of the claimant; (2) that a reasonable 
person could be expected to understand from the notice what 
was needed; or, (3) that a benefit could not have been 
awarded as a matter of law.  See Sanders v. Nicholson, 487 
F.3d 881 (Fed. Cir. 2007).  

The veteran's bilateral hearing loss claim arises from his 
disagreement with the initial evaluation following the grant 
of service connection.  Courts have held that once service 
connection is granted the claim is substantiated, additional 
notice is not required and any defect in the notice is not 
prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 
2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  
Therefore, no further notice is needed under VCAA.

As to VA's duty to assist, VA has associated with the claims 
folder the veteran's private and VA treatment records, and in 
December 2004 and June 2006, he was afforded formal VA 
examinations. The Board finds that no additional assistance 
is required to fulfill VA's duty to assist. Smith v. Gober, 
14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 
2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). 

ORDER

An initial compensable evaluation for bilateral hearing loss 
is denied.



____________________________________________
ERIC S. LEBOFF
Acting Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs