Citation Nr: 0813701	
Decision Date: 04/25/08    Archive Date: 05/01/08

DOCKET NO.  05-40 817	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, 
New York


THE ISSUE

Entitlement to an initial compensable rating for bilateral 
hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Woodward Deutsch, Associate Counsel


INTRODUCTION

The veteran served on active duty from September 1981 to 
August 1984.

This matter comes before the Board of Veterans' Appeals 
(Board) from a September 2004 rating decision of a Department 
of Veterans Affairs (VA) Regional Office (RO) that granted 
noncompensable service connection for bilateral hearing loss 
effective March 18, 2004.


FINDINGS OF FACT

Since the effective date of service connection, March 18, 
2004, the veteran's service-connected hearing loss has been 
manifested by an auditory acuity level of no more than I in 
the right ear and II in the left ear.  


CONCLUSIONS OF LAW

The criteria for an initial compensable rating for bilateral 
hearing loss have not been met.  38 U.S.C.A. § 1155 (West 
2007); 38 C.F.R. § 4.85, DC 6100 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Increased Rating

Disability ratings are determined by the application of the 
VA's Schedule for Rating Disabilities.  Separate diagnostic 
codes identify the various disabilities.  38 U.S.C.A. § 1155; 
38 C.F.R. Part 4.  When rating a service-connected 
disability, the entire history must be borne in mind.  
Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The Board 
will consider entitlement to staged ratings to compensate for 
times since filing the claim when the disability may have 
been more severe than at other times during the course of the 
claim on appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); 
Hart v. Mansfield, 21 Vet. App.  505 (2007).

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 (2007).

The veteran's bilateral hearing loss is rated according to a 
mechanical application of the rating schedule, using numeric 
designations assigned based on audiometric test results.  
Lendenmann v. Principi, 3 Vet. App. 345 (1992).  Evaluations 
of bilateral defective hearing range from noncompensable to 
100 percent.  The basic method of rating hearing loss 
involves audiological test results of impairment of hearing 
acuity as measured by the results of controlled speech 
discrimination tests (Maryland CNC), together with the 
average hearing threshold level as measured by pure tone 
audiometry tests in the frequencies of 1000, 2000, 3000, and 
4000 Hertz.  To evaluate the degree of disability from 
service-connected hearing loss, the rating schedule 
establishes eleven auditory acuity levels ranging from 
numeric level I for essentially normal acuity, through 
numeric level XI for profound deafness.  38 C.F.R. § 4.85 
(2007).

The current rating criteria include an alternate method of 
rating exceptional patterns of hearing, as defined in 38 
C.F.R. § 4.86 (2007).  This alternative method provides that 
when the puretone 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 of 38 C.F.R. § 4.85, whichever results in the 
higher numeral.  Each ear will be evaluated separately.  In 
this case, however, the veteran's test results do not meet 
the numerical criteria for such a rating based on an 
exceptional pattern of hearing.  Furthermore, no audiologist 
has certified that the speech discrimination test is no 
appropriate because of language difficulties, speech 
discrimination scores, or for any other reason, so the use of 
Table VIa is not warranted.  38 C.F.R. § 4.85(c) (2007).

The evidence of record consists of VA audiological 
examinations dated in August 2004 and October 2005. 

On VA examination in August 2004, the veteran's pure tone 
thresholds, in decibels, were as follows:



HERTZ



500
1000
2000
3000
4000
RIGHT
0
5
15
25
65
LEFT
5
15
5
65
65

The averages were 28 in the right ear and 38 in the left ear.  
Speech recognition ability under the Maryland CNC speech 
recognition test was 100 percent in the right ear and 94 
percent in the left ear.  

With respect to the veteran's right ear, applicable law 
provides that an average pure tone threshold of 28 decibels 
along with speech discrimination of 100 percent warrants a 
designation of Roman Numeral I under Table VI of 38 C.F.R. § 
4.85.  With respect to his left ear, the average pure tone 
threshold of 38 decibels along with speech discrimination of 
94 percent also warrants a designation of Roman Numeral I 
under Table VI of 38 C.F.R. § 4.85.  Under Table VII of 
38 C.F.R. § 4.85, where both ears are at Roman I, the 
appropriate rating is zero percent under DC 6100.  

On private examination in October 2005, the veteran's pure 
tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
10
10
20
60
LEFT
5
15
10
65
60

The averages were 25 in the right ear and 38 in the left ear.  
Speech recognition ability under the Maryland CNC speech 
recognition test was assessed as 96 percent in the right ear 
and 88 percent in the left ear.  

With respect to the veteran's right ear, applicable law 
provides that an average pure tone threshold of 25 decibels 
along with speech discrimination of 96 percent warrants a 
designation of Roman Numeral I under Table VI of 38 C.F.R. § 
4.85.  With respect to his left ear, the average pure tone 
threshold of 38 decibels along with speech discrimination of 
88 percent warrants a designation of Roman Numeral II under 
Table VI of 38 C.F.R. § 4.85.  Under Table VII of 38 C.F.R. 
§ 4.85, where the right ear is at Roman Numeral I and the 
left ear is at Roman Numeral II, a noncompensable rating is 
warranted under DC 6100.  

The Board acknowledges that the veteran has submitted the 
results of an old private audiological examination dated in 
November 1995.  However, that audiological examination 
occurred more than eight years prior to the date that the 
veteran filed her initial claim for service connection for 
bilateral hearing loss on March 18, 2004.  Therefore the 
Board finds that its probative value is outweighed by the 
more recent August 2004 and October 2005 audiological 
examinations showing bilateral hearing loss warranting no 
more than a noncompensable rating.  In any event, the 
November 1995 examination did not reveal bilateral hearing 
loss that exceeded the level of hearing loss manifested in 
the veteran's subsequent examinations of record.  

The results of the veteran's August 2004 and October 2005 
audiometric examinations are the only evidence of record that 
are valid and complete for rating purposes.  No other 
competent evidence demonstrating a more severe hearing loss 
has been submitted.  Thus, the Board finds that the veteran's 
disability has not warranted a compensable rating at any time 
since the original date of service connection.  Fenderson v. 
West, 12 Vet. App. 119 (1999).

The Board is sympathetic to the veteran's contentions 
regarding the severity of his service-connected bilateral 
hearing loss.  However, the results from the audiometric 
examinations, as compared to the rating criteria, do not 
warrant a compensable rating for hearing loss.  Accordingly, 
the Board finds that the preponderance of the evidence is 
against the claim for an increased rating for bilateral 
hearing loss, and the claim must be denied.  38 U.S.C.A. 
§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Duties to Notify and Assist the Appellant

Upon receipt of a complete or substantially complete 
application, VA must notify the claimant and any 
representative of any information, medical evidence, or lay 
evidence not previously provided to VA that is necessary to 
substantiate the claim.  This notice requires VA to indicate 
which portion of that information and evidence is to be 
provided by the claimant and which portion VA will attempt to 
obtain on the claimant's behalf.  See 38 U.S.C.A. §§ 5103, 
5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 
(2007).  The notice must:  (1) inform the claimant about the 
information and evidence not of record that is necessary to 
substantiate the claim; (2) inform the claimant about the 
information and evidence that VA will seek to provide; (3) 
inform the claimant about the information and evidence the 
claimant is expected to provide; and (4) request or tell the 
claimant to provide any evidence in the claimant's possession 
that pertains to the claim, or something to the effect that 
the claimant should "give us everything you've got pertaining 
to your claim(s)."  Pelegrini v. Principi, 18 Vet. App. 112 
(2004).  

Here, the RO sent correspondence in April 2004 and March 
2006, and a rating decision in September 2004.  These 
documents discussed specific evidence, the particular legal 
requirements applicable to the claim, the evidence 
considered, the pertinent laws and regulations, and the 
reasons for the decisions.  VA made all efforts to notify and 
to assist the appellant with regard to the evidence obtained, 
the evidence needed, the responsibilities of the parties in 
obtaining the evidence, and the general notice of the need 
for any evidence in the appellant's possession.  The Board 
finds that any defect with regard to the timing or content of 
the notice to the appellant is harmless because of the 
thorough and informative notices provided throughout the 
adjudication and because the appellant had a meaningful 
opportunity to participate effectively in the processing of 
the claim with an adjudication of the claim by the RO 
subsequent to receipt of the required notice.  There has been 
no prejudice to the appellant, and any defect in the timing 
or content of the notices has not affected the fairness of 
the adjudication.  See Mayfield v. Nicholson, 19 Vet. App. 
103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 
2006) (specifically declining to address harmless error 
doctrine); see also Vazquez-Flores v. Peake, 22 Vet. App. 37 
(2008); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Thus, 
VA has satisfied its duty to notify the appellant and had 
satisfied that duty prior to the final adjudication in the 
October 2005 statement of the case.  

In addition, all relevant, identified, and available evidence 
has been obtained, and VA has notified the appellant of any 
evidence that could not be obtained.  The appellant has not 
referred to any additional, unobtained, relevant, available 
evidence.  VA has also obtained a medical examination in 
relation to this claim.  Thus, the Board finds that VA has 
satisfied both the notice and duty to assist provisions of 
the law.

ORDER

An initial compensable rating for bilateral hearing loss is 
denied.



____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs