Citation Nr: 0814773 Decision Date: 05/05/08 Archive Date: 05/12/08 DOCKET NO. 05-22 295 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. Woodward Deutsch, Associate Counsel INTRODUCTION The veteran served on active duty from September 1944 to June 1946 and from December 1950 to April 1952. This matter comes before the Board of Veterans' Appeals (Board) from a February 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted noncompensable service connection for bilateral hearing loss, effective September 7, 2004. In March 2006 the veteran withdrew in writing his request for a hearing before a member of the Board. Regulations provide that a veteran may withdraw a hearing request at any time before the date of the hearing. See 38 C.F.R. § 20.704(e) (2007). FINDINGS OF FACT Since the effective date of service connection, September 7, 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 VI in the left ear. CONCLUSION 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 CONCLUSIONS Duties to Notify and Assist the Appellant The veteran's 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). 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. Background and Analysis 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). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in this case the veteran timely appealed the ratings initially assigned for his hearing loss on the original grant of service connection. The Board must therefore consider entitlement to staged ratings for different degrees of disability since the original grant of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). 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 clinical evidence of record since the effective date of service connection, September 7, 2004, consists of a VA audiological examination dated in January 2005. At that time, the veteran's pure tone thresholds, in decibels, were measured as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 35 40 40 LEFT 35 45 70 65 80 The averages were 35 in the right ear and 65 in the left ear. Speech recognition ability under the Maryland CNC speech recognition test was 92 percent in the right ear and 68 percent in the left ear. With respect to the veteran's right ear, applicable law provides that an average pure tone threshold of 35 decibels along with speech discrimination of 92 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 65 decibels along with speech discrimination of 68 percent warrants a designation of Roman Numeral VI 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 VI, a noncompensable rating is warranted under DC 6100. The Board acknowledges that the veteran has also submitted the results of a December 2002 private audiological examination. However, that audiological examination occurred more than one year prior to the date that the veteran filed his claim for service connection for bilateral hearing loss on September 7, 2004. Therefore the Board finds that its probative value is outweighed by the more recent January 2005 audiological examination showing bilateral hearing loss warranting no more than a noncompensable rating. In any event, the December 2002 examination did not reveal bilateral hearing loss that exceeded the level of hearing loss manifested in the veteran's subsequent examination of record. The veteran's January 2005 audiometric examination is the only clinical evidence of record that is valid and complete for rating purposes. No other competent evidence showing more severe hearing loss has been submitted. Thus, the Board finds that the 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 has considered the statements submitted by the veteran, his spouse, and his college friend regarding the severity of his service-connected bilateral hearing loss. However, the audiometric examination results, 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). This determination is based on application of provisions of the VA's Schedule for Rating Disabilities. There is no showing that the veteran's bilateral hearing loss reflects so exceptional or unusual a disability picture as to warrant the assignment of a compensable evaluation on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1). Indeed, there is no indication that the condition results in marked interference with employment, i.e., beyond that contemplated in the zero percent rating. The condition is also not shown to warrant frequent, or indeed, any periods of hospitalization, or otherwise render impractical the application of the regular schedular standards. In light of the above, the Board is not required to remand the claim to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An initial compensable rating for bilateral hearing loss is denied. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs