Citation Nr: 0813961	
Decision Date: 04/28/08    Archive Date: 05/08/08

DOCKET NO.  05-30 470	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North 
Little Rock, Arkansas


THE ISSUE

Entitlement to an increased (compensable) disability rating 
for right ear hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

K. J. Kunz, Counsel


INTRODUCTION

The veteran served on active duty from February 1962 to June 
1970, and from September 1970 to September 1991.

This appeal comes before the Board of Veterans' Appeals 
(Board) from a July 2004 rating decision by the North Little 
Rock, Arkansas Regional Office (RO) of the United States 
Department of Veterans Affairs (VA).  In that decision, the 
RO continued a noncompensable disability rating for right ear 
hearing loss.

In April 2006, the veteran had a Travel Board hearing at the 
RO before the undersigned Veterans Law Judge.  In August 
2007, the Board remanded the case for additional development.


FINDING OF FACT

The veteran's right ear hearing loss has not had a hearing 
impairment level higher than IV.


CONCLUSION OF LAW

The veteran's right ear hearing loss has not met the criteria 
for a compensable disability rating.  38 U.S.C.A. §§ 1155, 
5107 (West 2002); 38 C.F.R. Part 4, including §§ 3.383, 
3.385, 4.2, 4.7, 4.10, 4.85, Tables VI and VII (2007).



REASONS AND BASES FOR FINDING AND CONCLUSION

Rating for Hearing Loss

In 1991, shortly after retirement from service, the veteran 
sought service connection for bilateral hearing loss.  In a 
January 1992 rating decision, the RO granted service 
connection for hearing loss in the veteran's right ear, and 
denied service connection for any left ear hearing loss.  The 
veteran is seeking a higher rating for service-connected 
right ear hearing loss.

Disability ratings are determined by evaluating the extent to 
which a veteran's service-connected disability adversely 
affects his ability to function under the ordinary conditions 
of daily life, including employment, by comparing his 
symptomatology with the criteria set forth in the VA Schedule 
for Rating Disabilities (rating schedule).  38 U.S.C.A. § 
1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10.  If two 
ratings are potentially applicable, 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.  

A disability may require re-evaluation in accordance with 
changes in a veteran's condition.  It is thus essential, in 
determining the level of current impairment, that the 
disability be considered in the context of the entire 
recorded history.  38 C.F.R. § 4.1.  The Board acknowledges 
that a claimant may experience multiple distinct degrees of 
disability that might result in different levels of 
compensation from the time the increased rating claim was 
filed until a final decision is made.  See Hart v. Mansfield, 
21 Vet. App. 505 (2007).  Therefore, the Board will consider 
whether different ratings are warranted for different time 
periods.  When there is an approximate balance of positive 
and negative evidence regarding any issue material to the 
determination of a claim, VA shall give the benefit of the 
doubt to the claimant.  38 U.S.C.A. § 5107.

Under the VA rating schedule, hearing impairment is evaluated 
based on audiological testing, including a puretone 
audiometry test and the Maryland CNC controlled speech 
discrimination test.  38 C.F.R. § 4.85.  The puretone 
threshold average is the average of the puretone thresholds, 
in decibels, at 1000, 2000, 3000 and 4000 Hertz, shown on a 
puretone audiometry test.  38 C.F.R. § 4.85.  To find the 
appropriate disability rating based on test results, the 
puretone threshold average for each ear is considered in 
combination with the percentage of speech discrimination to 
establish a hearing impairment level, labeled from I to XI.  
See 38 C.F.R. § 4.85, Table VI.  The hearing impairment 
levels of both ears are then considered together to establish 
a disability rating for the hearing loss.  See 38 C.F.R. 
§ 4.85, Table VII.

When impaired hearing is service-connected in only one ear, 
in order to determine the percentage evaluation from Table 
VII, the non-service-connected ear will be assigned a hearing 
impairment level of I.  38 C.F.R. § 4.85(f).  Compensation is 
payable for a combination of service-connected and non-
service-connected hearing loss if impairment in the service-
connected ear is at least 10 percent disabling, and the non-
service-connected ear has an auditory threshold in any of 
relevant frequencies of 40 decibels or greater, auditory 
thresholds in at least three of the relevant frequencies of 
26 decibels or greater, or a speech recognition score, using 
the Maryland CNC Test, of less than 94 percent.  38 C.F.R. 
§§ 3.383, 3.385.  Tables VI and VII are reproduced below.


	(CONTINUED ON NEXT PAGE)




TABLE VI
Numeric Designation of Hearing Impairment
Based on Puretone Threshold Average and Speech Discrimination

Percentage of 
Discrimination		Puretone Threshold Average

0-41
42-
49
50-
57
58-
65
66-
73
74-
81
82-
89
90-
97
98+
92-
100
I
I
I
II
II
II
III
III
IV
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
VII
60-
66
V
V
VI
VI
VII
VII
VIII
VIII
VIII
52-
58
VI
VI
VII
VII
VIII
VIII
VIII
VIII
IX
44-
50
VII
VII
VIII
VIII
VIII
IX
IX
IX
X
36-
42
VIII
VIII
VIII
IX
IX
IX
X
X
X
0-34
IX
X
XI
XI
XI
XI
XI
XI
XI



	(CONTINUED ON NEXT PAGE)



Table VII
Percentage Evaluations for Hearing Impairment

LEVEL OF HEARING
IN BETTER EAR
XI 
100
* 










X 
90 
80 









IX 
80 
70 
60 








VII
I 
70 
60 
50 
50 







VII 
60 
60 
50 
40 
40 






VI 
50 
50 
40 
40 
30 
30 





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
VII
VI
V
IV
III
II
I
					LEVEL OF HEARING IN POORER EAR

*  Entitled to special monthly compensation under 38 C.F.R. 
3.350. [64 FR 25206, May 11, 1999] 


On the VA audiological evaluation in May 2004, puretone 
thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
30
75
80
LEFT
15
20
30
25
25

The puretone threshold average was 51 decibels in the right 
ear and 25 decibels in the left ear.  Speech audiometry 
revealed speech recognition ability of 88 percent in the 
right ear and of 100 percent in the left ear.  The hearing 
impairment level in the right ear was II.  Assigning a 
hearing impairment level of I in the left ear for calculation 
purposes, the test results were consistent with a 0 percent 
rating.

An audiological evaluation was performed at a VA facility in 
July 2005 and a copy of the report was associated with the 
claims folder pursuant to the Board remand.  The report 
included audiometric findings of pure tone hearing threshold 
levels that are shown in graphic form instead of numeric 
form.  The Board is precluded from applying these graphic 
results to the criteria of 38 C.F.R. § 3.385 in order to 
determine the severity of any hearing loss disability.  See 
Kelly v. Brown, 7 Vet. App. 471 (1995).  

On the VA audiological evaluation in November 2006, puretone 
thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
40
45
85
90
LEFT
15
20
30
30
30

The puretone threshold average was 65 decibels in the right 
ear and 28 decibels in the left ear.  Speech audiometry 
revealed speech recognition ability of 76 percent in the 
right ear and of 98 percent in the left ear.  The hearing 
impairment level in the right ear was IV.  Assigning a 
hearing impairment level of I in the left ear for calculation 
purposes, the test results were consistent with a 0 percent 
rating.

In the April 2006 hearing, the veteran reported that, even 
with a hearing aid, he could not effectively use his right 
ear.  He stated that he had to hold a telephone against his 
left ear, and had to turn his left ear toward people to hear 
what they were saying.

The veteran's right ear hearing impairment, as measured in 
audiological testing, does not meet the rating schedule 
criteria for a compensable rating.  VA may consider an 
extraschedular rating in cases that are exceptional, such 
that the standards of the rating schedule appear to be 
inadequate to evaluate a disability.  38 C.F.R. § 3.321(b)(1) 
(2007).  Extraschedular ratings under 38 C.F.R. § 3.321(b)(1) 
are limited to cases in which there is an exceptional or 
unusual disability picture, with such related factors as 
marked interference with employment, or frequent periods of 
hospitalization, that makes it impractical to apply the 
regular standards of the rating schedule.  The Board does not 
have the authority to assign, in the first instance, higher 
ratings on an extraschedular basis under 38 C.F.R. 
§ 3.321(b)(1).  When an extraschedular rating may be 
warranted, the Board must refer the case to designated VA 
officials.  Bagwell v. Brown, 9 Vet. App. 377 (1996).

In this case, the manifestations and effects of the veteran's 
right ear hearing loss do not necessitate referral of the 
rating of that disability to designated VA officials for 
consideration of an extraschedular rating.  The veteran has 
not had been hospitalized for his hearing loss; and the 
evidence does not indicate that his right ear hearing loss 
markedly interferes with employment.

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 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 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).

In a claim for an increased rating, VA must inform the 
claimant of the criteria for a higher rating, including the 
consideration of relevant Diagnostic Codes.  If the 
Diagnostic Code under which the disability is rated contains 
criteria, such as a specific measurement or test result, for 
a higher rating that would not be satisfied by a showing of 
worsening or increase in disability, VA must notify the 
claimant of that requirement.  VA must notify the claimant, 
and give examples, of the types of medical and lay evidence 
that are relevant to an increased rating for the particular 
disability.  See Vazquez-Flores v. Peake, 22 Vet. App. 37 
(2008).  

The RO provided the appellant pre-adjudication notice by 
letters dated in May 2003 and April 2004.  The notification 
substantially complied with the requirements of Quartuccio v. 
Principi, 16 Vet. App. 183 (2002), identifying the evidence 
necessary to substantiate a claim and the relative duties of 
VA and the claimant to obtain evidence; 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.  The notification advised the veteran of the laws 
regarding degrees of disability, but did not advise the 
veteran of the laws regarding effective dates for any grant 
of service connection.  

The May 2003 and April 2004 notice letters did not inform the 
veteran of the criteria for higher ratings for hearing loss.  

Any error by VA in providing the notice required by 38 U.S.C. 
§ 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed 
prejudicial, and once an error is identified as to any of the 
notice elements, the burden shifts to VA to demonstrate that 
the error was not prejudicial to the appellant.  Sanders v. 
Nicholson, 487 F.3d 881 (Fed. Cir. 2007).

In this case, the Board finds that any content-related notice 
errors did not affect the essential fairness of the 
adjudication of the claim.  The July 2004 RO decision 
explained the criteria for the next higher ratings available 
for the increased rating claim under the applicable 
diagnostic codes.  The August 2005 statement of the case 
provided the veteran with the applicable regulations relating 
to disability ratings and effective dates for the increased 
rating claim.  In addition, the veteran has been represented 
throughout the adjudication of his appeal.  The Board finds 
that a reasonable person would have understood from the 
information that VA provided to the veteran and his 
representative what was necessary to substantiate his 
increased rating claim.  The veteran therefore had a 
meaningful opportunity to participate in the adjudication of 
his claim such that essential fairness of the adjudication 
was not affected.  The Board finds that no prejudice to the 
veteran will result from proceeding with adjudication without 
additional notice or process.  See Vazquez-Flores, 22 Vet. 
App. at 37 (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-
31 (2007)).  

VA has provided audiological examinations and testing, and 
has afforded the veteran the opportunity to give testimony 
before the Board.  All known and available records relevant 
to the issue on appeal have been obtained and associated with 
the veteran's claims file; and the veteran has not contended 
otherwise.  The Board finds that VA has substantially 
complied with the notice and assistance requirements, and 
that the veteran is not prejudiced by a decision on the 
hearing loss rating claim at this time.


ORDER

Entitlement to a compensable disability rating for right ear 
hearing loss is denied.




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






 Department of Veterans Affairs