Citation Nr: 1109727	
Decision Date: 03/11/11    Archive Date: 03/24/11

DOCKET NO.  09-28 101	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUE

Entitlement to an initial (compensable) rating for bilateral hearing loss.  


REPRESENTATION

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


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T. Hal Smith, Counsel


INTRODUCTION

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2009).

The Veteran served on active duty from August 1951 to August 1955.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island.  In that decision, service connection was established for bilateral hearing loss and a noncompensable rating was assigned.  The Veteran appealed, and the noncompensable rating was confirmed and continued in July 2009 and July 2010.  The appeal continues.  

A videoconference hearing was held in February 2011 before the undersigned Veterans Law Judge, sitting in Washington, D.C.  A copy of the transcript of that hearing is of record.  


FINDING OF FACT

Audiometric testing has revealed, at worst, level II hearing acuity in the right ear and level III in the left ear.


CONCLUSION OF LAW

The criteria for an increased (compensable) rating for bilateral hearing loss are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.321, 3.350, 3.385, 4.1, 4.2, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a Claimant in developing information and evidence necessary to substantiate a claim.

Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the Claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the Claimant is to provide.  The notification requirements are referred to as Type One, Type Two, and Type Three, respectively.  See Shinseki v. Sanders, 556 U.S. __, 129 S. Ct. 1696 (April 21, 2009).

Also, the VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: (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).

The VCAA notice must be provided to a Claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The RO provided pre-adjudication VCAA notice by a letter, dated in September 2008, on the underlying claim of service connection, as well as post-adjudication letters dated in July 2009 (statement of the case (SOC) and July 2010 (supplemental statement of the case (SSOC) in relation to the increased rating claim.  Where, as here, service connection has been granted and the initial disability rating has been assigned, the claim of service connection has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled.  Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the RO's decision regarding the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice.  Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable.  Dingess, 19 Vet. App. 473; Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008).

Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the Claimant in obtaining evidence necessary to substantiate the claim.  The RO has obtained the Veteran's service treatment records (STRs) as well as VA treatment records.  The Veteran has not identified any additional pertinent records for the RO to obtain on his behalf.

The Veteran was afforded VA examinations in October 2008 in relation to his initial claim of service connection.  Additional VA examination was scheduled in June 2010, in relation to his claim for an increased rating.  As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist.

Laws and Regulations

Disability evaluations are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2009); 38 C.F.R. Part 4 (2010).  When a question arises as to which of two ratings applies under a particular DC, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies.  38 C.F.R. § 4.7 (2010).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2010).

The Veteran's entire history is to be considered when making disability evaluations.  See generally 38 C.F.R. 4.1 (2010); Schafrath v. Derwinski, 1 Vet .App. 589 (1995).  Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Nevertheless, 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.  Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

The RO has assigned an noncompensable disability rating for the Veteran's bilateral hearing loss in accordance with the criteria set forth under 38 C.F.R. § 4.85, DC 6100 (2010).

Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric evaluations.  Ratings for hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per second.  To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness.  38 C.F.R. § 4.85, DC 6100 (2010).

Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII.  38 C.F.R. § 4.85 (2010).

Exceptional patterns of hearing impairment are evaluated under 38 C.F.R. § 4.86 (2010).

(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.

(b) When the pure tone 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 Roman numeral.  Each ear will be evaluated separately.

As noted above, under VA rating criteria, an adequate evaluation of impairment of hearing acuity rests upon the results of controlled speech discrimination tests, together with tests of the average hearing threshold levels at certain specified frequencies.  38 C.F.R. § 4.85 (2010), DC 6100 (2010).

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).

A claim placed in appellate status by disagreement with the original or initial rating award (service connection having been allowed) but not yet ultimately resolved, as is the case herein, remains an "original claim" and is not a new claim for increase.  Fenderson v. West, 12 Vet. App. 119 (1999).  In such cases, separate compensable evaluations may be assigned for separate periods of time, but only if such distinct periods are shown by the competent evidence of record during the pendency of the appeal, a practice known to the US Court of Appeals for Veterans Claims as "staged" ratings.  Id. at 126.

Background

On the authorized audiological evaluation in October 2008, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
N/A
25
35
50
50
LEFT
N/A
20
40
70
70

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 88 percent in the left ear.  Average pure tone threshold loss was 40 decibels in the right ear and 50 decibels in the left ear.  

On the authorized audiological evaluation in June 2010, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
N/A
30
45
60
70
LEFT
N/A
30
45
80
80

Speech audiometry revealed speech recognition ability of 86 percent in the right ear and of 90 percent in the left ear.  The average pure tone threshold loss was 51.25 in the right ear and 58.75 in the left ear.  

At the February 2011 personal hearing, the Veteran testified as to the severity of his bilateral hearing loss.  He reported difficulty in understanding conversational speech without use of amplification.  He also had difficulty understanding conversational speech with background noise and poor listening condition and when he could visualize the speaker's face.  While he wore hearing aids, he was still unable to pick up all that was said in normal conversations or on television.  He indicated that the hearing loss was about the same as it had been at the last exam.

Analysis

Applying the method for evaluating hearing loss to the results of the Veteran's audiological evaluations, the October 2008 audiometric evaluation reveals Level I hearing acuity in the right ear and Level II hearing acuity in the left ear, based on application of the reported findings to Table VI.  Application of these findings to Table VII corresponds to a 0 percent rating under 38 C.F.R. § 4.85, DC 6100.  The June 2010 audiometric evaluation reveals Level II hearing acuity in the right ear and Level III hearing acuity in the left ear, based on application of the reported findings to Table VI.  Application of these findings to Table VII corresponds to a 0 percent rating. Application of these findings to Table VII also corresponds to a 0 percent rating under DC 6100.  The Board points out that none of the pure tone thresholds recorded in any of the VA examinations reflect exceptional hearing impairment, and thus 38 C.F.R. § 4.86(a) is not for application.

The above analysis reflects that the Veteran is properly receiving a noncompensable rating based on findings from the October 2008 and June 2010 audiometric testing results, which revealed that the combination of the pure tone threshold averages and speech recognition tests warranted a 0 percent rating under the applicable tables.  The Board in no way discounts the difficulties that the Veteran experiences as a result of his bilateral hearing loss.  However, it must be emphasized, as indicated above, that disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric evaluations; the Board has no discretion in the matter.  See Lendenmann, 3 Vet. App. at 349.  In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2009); 38 C.F.R. § 4.1 (2010).

In addition, the Board notes that there is no evidence of an exceptional or unusual disability picture with related factors, such as marked interference with employment or frequent periods of hospitalization, so as to warrant referral of the case to appropriate VA officials for consideration of an extra schedular rating under 38 C.F.R. § 3.321(b)(1) (2010); Shipwash v. Brown, 8 Vet. App. 218 (1995).  Here, the record does not reflect that the Veteran was hospitalized for his service-connected bilateral hearing loss.  There is no objective evidence revealing that his condition caused marked interference with employment, e.g., employers' statements or sick leave records, beyond that already contemplated by the schedular rating criteria.

For all the foregoing reasons, there is no basis for staged rating, pursuant to Hart, and the claim for an increased (compensable) rating for bilateral hearing loss must be denied.  In reaching this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, the doctrine is not applicable in the instant appeal.  38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. § 3.102 (2010); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Entitlement to an initial (compensable) rating for bilateral hearing loss is denied.  


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs