Citation Nr: 0814658	
Decision Date: 05/02/08    Archive Date: 05/12/08

DOCKET NO.  07-10 771	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in 
Albuquerque, New Mexico


THE ISSUE

Entitlement to a higher initial rating for bilateral hearing 
loss disability, currently rated 20 percent disabling.


REPRESENTATION

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


WITNESS AT HEARING ON APPEAL

The veteran


ATTORNEY FOR THE BOARD

M.W. Kreindler, Counsel


INTRODUCTION

The veteran served on active duty from November 1965 to 
October 1969.

This matter comes to the Board of Veterans' Appeals (Board) 
from a July 2004 rating decision of a Department of Veterans 
Affairs (VA) Regional Office (RO).  A notice of disagreement 
was filed in July 2005, a statement of the case was issued in 
March 2007, and a substantive appeal was received in April 
2007.  The veteran testified at a hearing before the 
undersigned in August 2007; the transcript is of record.


FINDING OF FACT

The veteran has no higher than level IV hearing acuity in the 
right ear and level VII hearing acuity in the left ear.


CONCLUSION OF LAW

The criteria for the assignment of a disability rating in 
excess of 20 percent for bilateral hearing loss disability 
have not been met.  38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 
5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.85, 4.86, 
Diagnostic Code 6100 (2007).


REASONS AND BASES FOR FINDING AND CONCLUSION

Under the Veterans Claims Assistance Act of 2000 (VCAA), 
codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 
5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 
3.326(a), VA has a duty to notify the claimant of any 
information and evidence needed to substantiate and complete 
a claim, and of what part of that evidence is to be provided 
by the claimant and what part VA will attempt to obtain for 
the claimant.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 
3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 
(2002).  

The United States Court of Appeals for Veteran Claims' 
(Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 
(2004), held, in part, that a VCAA notice, as required by 
38 U.S.C.A. § 5103(a), must be provided to a claimant before 
the initial unfavorable agency of original jurisdiction (AOJ) 
decision on a claim for VA benefits.  This decision has since 
been replaced by Pelegrini v. Principi, 18 Vet. App. 112 
(2004), in which the Court continued to recognize that 
typically a VCAA notice, as required by 38 U.S.C.A. 
§ 5103(a), must be provided to a claimant before the initial 
unfavorable agency of original jurisdiction (AOJ) decision on 
a claim for VA benefits.  In this case, VCAA letters were 
issued to the veteran in January and April 2004 pertaining to 
his claim of entitlement to service connection for bilateral 
hearing loss disability.  The letters predated the July 2004 
rating decision.  See id.  Since the bilateral hearing loss 
disability appellate issue in this case (entitlement to 
assignment of a higher initial rating) is a downstream issue 
from that of service connection (for which the January and 
April 2004 VCAA letters were duly sent), another VCAA notice 
is not required.  VAOPGCPREC 8- 2003 (Dec. 22, 2003).  
Collectively, the VCAA letters notified the veteran of what 
information and evidence is needed to substantiate his claim, 
as well as what information and evidence must be submitted by 
the claimant, what information and evidence will be obtained 
by VA, and the need for the claimant to submit any evidence 
in his possession that pertains to the claim.  Id.; but see 
VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004).  The VCAA 
letters have clearly advised the veteran of the evidence 
necessary to substantiate his claim. 

During the pendency of this appeal, on March 3, 2006, the 
Court issued a decision in the consolidated appeal of 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which 
held that the VCAA notice requirements of 38 U.S.C.A. 
§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements 
of a service connection claim.  Those five elements include:  
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.  The Court held that upon receipt of an 
application for a service-connection claim, 38 U.S.C.A. § 
5103(a) and 38 C.F.R. § 3.159(b) require VA to review the 
information and the evidence presented with the claim and to 
provide the claimant with notice of what information and 
evidence not previously provided, if any, will assist in 
substantiating or is necessary to substantiate the elements 
of the claim as reasonably contemplated by the application.  
Dingess/Hartman, 19 Vet. App. at 486.  Although the present 
appeal involves an increased rating issue, VA believes that 
the Dingess/Hartman analysis must be analogously applied.  

In the present appeal, the veteran was provided with notice 
of what type of information and evidence was needed to 
substantiate the underlying claim of service connection, but 
there has been no notice of the types of evidence necessary 
to establish a disability rating or an effective date.  
Despite the inadequate notice provided to the veteran, the 
Board finds no prejudice to him in proceeding with the 
issuance of a final decision.  See Bernard v. Brown, 4 Vet. 
App. 384, 394 (1993) (where the Board addresses a question 
that has not been addressed by the agency of original 
jurisdiction, the Board must consider whether the appellant 
has been prejudiced thereby).  The Board notes that the RO 
did furnish the veteran letters in January and April 2004 
which advised him of the evidence necessary to support his 
service connection claim.  Since the Board concludes below 
that the preponderance of the evidence is against entitlement 
to an increased rating, any questions as to the appropriate 
effective date to be assigned are rendered moot. 

The Board also finds that VA has complied with all assistance 
provisions of VCAA.  The evidence of record contains the 
veteran's service medical records and post-service VA medical 
records.  There is no indication of relevant, outstanding 
records which would support the veteran's claim.  38 U.S.C.A. 
§ 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3).  Additionally, the 
evidence of record contains VA audiological examinations 
performed in May 2004 and May 2007.  The examination reports 
obtained are thorough and contain sufficient information to 
decide the issue on appeal.  See Massey v. Brown, 7 Vet. App. 
204 (1994).  

For all the foregoing reasons, the Board concludes that VA's 
duties to the veteran have been fulfilled with respect to the 
issue on appeal.

Criteria & Analysis

Disability evaluations are determined by the application of 
the Schedule For Rating Disabilities, which assigns ratings 
based on the average impairment of earning capacity resulting 
from a service-connected disability.  38 U.S.C.A. § 1155; 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.  

In order to evaluate the level of disability and any changes 
in condition, it is necessary to consider the complete 
medical history of the veteran's condition.  Schafrath v. 
Derwinski, 1 Vet. App. 589, 594 (1991).  Where, as in the 
instant case, the appeal arises from the original assignment 
of a disability evaluation following an award of service 
connection, the severity of the disability at issue is to be 
considered during the entire period from the initial 
assignment of the disability rating to the present time.  See 
Fenderson v. West, 12 Vet. App. 119 (1999).

The current version of the Ratings Schedule provides a table 
for ratings purposes (Table VI) to determine a Roman numeral 
designation (I through XI) for hearing impairment, 
established by a state-licensed audiologist including a 
controlled speech discrimination test (Maryland CNC), and 
based upon a combination of the percent of speech 
discrimination and the puretone threshold average which is 
the sum of the puretone thresholds at 1000, 2000, 3000 and 
4000 Hertz, divided by four.  See 38 C.F.R. § 4.85.

Table VII is used to determine the percentage evaluation by 
combining the Roman numeral designations for hearing 
impairment of each ear.  The horizontal row represents the 
ear having the poorer hearing and the vertical column 
represents the ear having the better hearing.  Id.

Table Via will be used when the examiner certifies that the 
use of speech discrimination test is not appropriate because 
of language difficulties, inconsistent speech discrimination 
scores, etc., or when indicated under the provisions of 38 
C.F.R. § 4.86.  38 C.F.R. § 4.85(c).

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, whichever results in the higher numeral.  
Each ear will be evaluated separately.  38 C.F.R. § 4.86(a).

When the puretone threshold is 30 decibels or less at 1000 
Hertz, and 70 decibels or more at 2000 Hertz, 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.  That numeral will 
then be elevated to the next higher.  38 C.F.R. § 4.86(b).

To evaluate the degree of disability from defective hearing, 
the rating schedule establishes eleven auditory acuity levels 
designated from I for essentially normal acuity, through XI 
for profound deafness.  38 C.F.R. § 4.85, Tables VI, VII.

A noncompensable evaluation is provided where hearing in the 
better ear is I and hearing in the poorer ear is I through 
IX; where hearing in the better ear is II, and hearing in the 
poorer ear is II to IV; or where there is level III hearing 
in both ears.  A 10 percent disability rating is warranted 
where hearing in the better ear is I, and hearing in the 
poorer ear is X to XI; or where hearing in the better ear is 
II, and hearing in the poorer ear is V to XI; or where 
hearing in the better ear is III, and hearing in the poorer 
ear is IV to VI..  38 C.F.R. § 4.85, Table VII, Diagnostic 
Code 6100.  

Pertinent case law provides that the assignment of disability 
ratings for hearing impairment are to be derived by the 
mechanical application of the Ratings Schedule to the numeric 
designations assigned after audiometry evaluations are 
rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).

On an examination performed for separation purposes in 
September 1969, the veteran's ears were clinically evaluated 
as normal and pure-tone thresholds for the ears were as 
follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
N/A
20
25
45
45
LEFT
N/A
25
40
50
50

In September 2002, the veteran sought VA outpatient treatment 
for hearing loss.  Specific pure-tone threshold results were 
not documented.  There was mild to moderate sensorineural 
hearing loss in the right ear above 500 Hertz, and mild to 
severe sensorineural hearing loss in the left ear above 500 
Hertz.  

In May 2004, the veteran underwent a VA audiological 
examination.  He reported that during service he was exposed 
to hazardous noise.  He reported significant problems 
understanding conversation.  He needs to be close to people 
when they speak, and he watches their faces.  He has to turn 
the television volume up, and has problems understanding the 
telephone if the volume is not turned up.  Pure-tone 
thresholds for the ears were as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
N/A
40
60
55
55
LEFT
N/A
50
70
70
70

The pure tone average in the right ear was 52.50 decibels, 
and 65 decibels in the left ear.  Speech recognition scores 
were 80 percent in the right ear, and 60 percent in the left 
ear.  The examiner determined that the veteran has mild mid 
to moderate-severe high frequencies sensorineural hearing 
loss in the right ear.  In his left ear, he has moderate mid 
to severe mid-high frequencies sensorineural hearing loss.  
He has slight (right) and moderate (left) difficulty with 
speech discrimination.  Such findings translate to level IV 
hearing in the right ear and level VI hearing in the left 
ear.  38 C.F.R. § 4.85, Table VI.  Applying Table VII, 
Diagnostic Code 6100, this equates to a 20 percent rating for 
hearing loss.  

In May 2007, the veteran underwent another VA audiological 
examination.  He complained of reduced ability to hear and 
understand speech.  Pure-tone thresholds for the ears were as 
follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
N/A
35
55
55
55
LEFT
N/A
50
65
75
75

The pure tone average in the right ear was 50 decibels, and 
66.25 decibels in the left ear.  Speech recognition scores 
were 76 percent in the right ear, and 64 percent in the left 
ear.  Pure tone results showed a mild to moderately severe 
sensorineural hearing loss in the right ear and a moderate to 
severe sensorineural hearing loss in the left ear.  Word 
recognition was mildly reduced in the right ear and 
moderately reduced in the left ear.  There was normal middle 
ear function in both ears.  Reflexes were normal in all 
conditions in both ears.  There was positive reflex decay at 
1000 Hertz in the right ear, and negative reflex decay in the 
left ear at 1000 Hertz.  There was negative STAT at 1000 
Hertz in both ears.  The diagnosis rendered was bilateral 
sensorineural hearing loss.  Such findings translate to level 
IV hearing in the right ear and level VII hearing in the left 
ear.  38 C.F.R. § 4.85, Table VII.  Applying Table VII, 
Diagnostic Code 6100, this again equates to a 20 percent 
rating for hearing loss.  

The Board acknowledges the veteran's contentions regarding 
impact of his hearing loss on his daily activities, and VA's 
obligation to resolve all reasonable doubt in the veteran's 
favor.  However, as noted previously, because assignment of 
disability ratings for hearing impairment are derived by a 
mechanical application of the rating schedule to the numeric 
designations assigned after audiometry evaluations are 
rendered there is no doubt as to the proper evaluation to 
assign.  Lendenmann, supra; 38 C.F.R. § 4.85, Tables VI, VIA, 
and VII, Diagnostic Code 6100.  Applying the audiological 
test results most favorable to the veteran to the regulatory 
criteria, the Board is compelled to conclude that the 
preponderance of the evidence is against entitlement to a 
disability rating in excess of 20 percent for bilateral 
hearing loss disability.  Thus, there is no reasonable doubt 
to be resolved.  The veteran may always advance an increased 
rating claim if the severity of his hearing loss disability 
should increase in the future.

The assignment of an extra-schedular rating was considered in 
this case under 38 C.F.R. § 3.321(b)(1); however, the record 
contains no objective evidence that the veteran's bilateral 
hearing loss disability has resulted in marked interference 
with earning capacity or employment beyond that interference 
contemplated by the assigned evaluation, or has necessitated 
frequent periods of hospitalization.  At the August 2007 
Board hearing, the veteran testified that he is employed as a 
probation parole officer, and testified as to the effects his 
hearing loss has on his employment.  His limitations include 
problems hearing offenders, and problems hearing the judge 
during court appearances.  VA's General Counsel has noted 
"mere assertions or evidence that a disability interferes 
with employment" is not enough to warrant extra-schedular 
consideration.  Rather, consideration of an extra-schedular 
rating under 3.321(b)(1) is only warranted where there is 
evidence that the disability picture presented by the veteran 
would, in that average case, produce impairment of earning 
capacity beyond that reflected in the rating schedule or 
where evidence shows that the veteran's service-connected 
disability affects employability in ways not contemplated by 
the rating schedule.  See VA O.G.C. Prec. Op. No. 6-96, 
published at 61 Fed. Reg. 66749 (1996).  Such a showing has 
not been made in this case.  Likewise, there is no evidence 
of record showing that the veteran has ever been hospitalized 
due to his bilateral hearing loss disability.  Accordingly, 
the Board finds that 38 C.F.R. § 3.321 is inapplicable.

In summary, for the reasons and bases expressed above, the 
Board has concluded that a disability rating in excess of 20 
percent is not warranted for bilateral hearing loss 
disability.  Accordingly, the benefit sought on appeal is 
denied.


ORDER

The appeal is denied.



____________________________________________
MICHAEL A. PAPPAS
Acting Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs