Citation Nr: 1119211	
Decision Date: 05/18/11    Archive Date: 05/26/11

DOCKET NO.  10-40 497	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana


THE ISSUE

Entitlement to a disability rating in excess of 10 percent for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Heather J. Harter, Counsel



INTRODUCTION

The Veteran served on active duty from April 1953 to April 1955.  

This matter arises from a September 2009 RO decision from which the Veteran has perfected a timely appeal to the Board of Veterans' Appeals (Board).

Although the Veteran requested a hearing before an RO hearing office at several points during the appeal proceedings, in a subsequent statement submitted by his representative, the hearing request was withdrawn.  The Board will therefore proceed with appellate review without further delay.

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).


FINDING OF FACT

Audiometric testing conducted during the appeal period reveals Level IV hearing acuity in the right ear and Level III hearing acuity in the left ear. 


CONCLUSION OF LAW

The criteria for a disability rating greater than 10 percent for bilateral hearing loss are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.385, 4.1, 4.2, 4.7, 4.85, Diagnostic Code 6100 (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran contends his bilateral hearing loss has worsened to the point where he cannot hear anything without his hearing aids.  His representative asserts that the VA has a responsibility to ensure audiometric testing is conducted without hearing aids, so as to reflect hearing acuity without electronic enhancement.



Duties to notify and assist

When an application for benefits is received, VA has certain notice and assistance requirements under the law.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  First, proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must:  (1) inform the claimant about the information and evidence not of record necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  The VA is also required to inform the Veteran of how the VA assigns disability ratings and effective dates.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Review of the claims file shows that the Veteran was informed of these elements with regard to his claim in a letter of July 2009, prior to the initial adjudication of the claim.  

The Veteran's representative challenges the report of the July 2009 VA examination as the report does not specify whether testing was conducted with or without the Veteran's hearing aids.  The representative further asserts that because the Veteran himself states he cannot hear a thing without his hearing aids, that the testing should have been conducted without hearing aids so as to confirm the severity of the Veteran's hearing loss.  

Upon review, the Board finds that the July 2009 examination is adequate for rating the Veteran's hearing impairment, despite the absence of a notation as to whether the test was performed with hearing aids.  38 C.F.R. § 3.159(c).  Governing regulation specifies that hearing tests will be conducted without hearing aids.  38 C.F.R. § 4.85.  Furthermore, under the presumption of regularity, in the absence of clear evidence to the contrary, it is presumed that public officers have properly discharged their duties.  Sickels v. Shinseki, No. 2010-7140 (Fed. Cir. May 6, 2011).  Thus, as there is no indication to the contrary, the Board presumes that the VA audiologist who performed the July 2009 examination conducted the examination in accordance with the governing regulation, 38 C.F.R. § 4.85, as well as in accordance with standard medical practice.  

VA medical records and VA examination reports have been obtained and reviewed in support of the Veteran's claim.  The Veteran and his representative have presented written statements in support of his claims.  All relevant records and contentions have been carefully reviewed.  The Board therefore concludes that the VA's duties to notify and assist have been met with regard to the matters decided herein.

Standard of review

Once the evidence has been assembled, it is the Board's responsibility to evaluate the record.  38 U.S.C.A. § 7104(a).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Analysis

Disability evaluations are assigned to reflect levels of current disability.  The appropriate rating is determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  When 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 evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. §§ 4.1, 4.41; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  However, 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.  Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, regulations do not give past medical reports precedence over current findings.  38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994).

Because the level of a veteran's disability may fluctuate over time, the VA is required to consider the level of the veteran's impairment throughout the entire appeal period.  In this respect, staged ratings can provide a sensible mechanism for allowing the assignment of the most precise disability rating-one that accounts for the possible dynamic nature of a disability while the claim works its way through the adjudication process.  O'Connell v. Nicholson, 21 Vet. App. 89 (2007).  In another relevant precedent, the United States Court of Appeals for Veterans Claims (Court) noted that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  In reaching this conclusion, the Court observed that when a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that timeframe.  38 U.S.C.A. § 5110; Hart v. Mansfield, 21 Vet. App. 505 (2007).

Historically, service connection for bilateral hearing loss was granted effective in September 2006.  A 10 percent disability rating was assigned based upon the Veteran's objective hearing test results.

Evaluations of bilateral defective hearing 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 bilateral service-connected defective hearing, the regulatory rating schedule establishes eleven auditory acuity levels, designated from level I for slightly impaired hearing acuity through level XI for profound deafness.  38 C.F.R. § 4.85, Part 4, Diagnostic Code 6100.  "(D)isability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered."  Lendenmann v. Principi, 3 Vet. App. 345 (1992).

The Veteran underwent a VA audiological examination in connection with his application for service connection in September 2007.  The audiologist rendered a diagnosis of mild to severe sensorineural hearing loss in the right ear, with good speech discrimination under quiet conditions, and a diagnosis of mild to severe sensorineural hearing loss in the left ear, with fair speech discrimination under quiet conditions.  The Veteran's pure tone thresholds, in decibels, were measured as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
30
40
65
75
LEFT
25
30
45
70
80

The average pure tone threshold in the right ear was 53 decibels, while the average in the left ear was 56 decibels.  Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 76 percent in the left ear.  

After service connection was granted, the Veteran received VA-provided hearing aids, and received new ones in December 2008.  

The Veteran underwent another VA audiological examination in July 2009.  At that time, his pure tone thresholds, in decibels, were measured as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
40
55
80
85
LEFT
35
50
55
85
95

The average pure tone threshold in the right ear was 65 decibels, while the average in the left ear was 71.25 decibels.  Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 84 percent in the left ear.  The examiner rendered diagnoses of mild to severe sensorineural hearing loss in both ears and good speech discrimination under quiet conditions.

Initial review of the audiometric results confirms the Veteran's assertion that his hearing acuity has worsened since the grant of service connection.  Applying the provisions of 38 C.F.R. § 4.85 to the Veteran's most recent test results, his right ear hearing acuity equates to a level IV.  His left ear hearing acuity equates to a level III.  When plugged into Table VII, these findings warrant a 10 percent evaluation under the required formula.  38 C.F.R. § 4.84, Table VI and Table VII, Diagnostic Code 6100.  Thus, even though his hearing acuity has worsened, it has not worsened to such an extent as to warrant the assignment of a higher disability rating.  

The governing regulations include a special provision for evaluating exceptional patterns of hearing impairment, deemed to exist:  (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.  Again, each ear will be evaluated separately.  38 C.F.R. § 4.86.   

In this case, the record does not reveal pure tone thresholds meeting the definition of exceptional hearing impairment under 38 C.F.R. § 4.86.  Thus, application of this provision would be inappropriate. 

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 that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained.  As explained above, we are satisfied that the audiometric results obtained are reliable.  Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record.  Lendenmann.  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; 38 C.F.R. § 4.1.

Under these circumstances, the Board finds that the record presents no basis for assignment of a higher disability rating.  The preponderance of the evidence is against the Veteran's claim and the benefit sought must be denied.  

Extra-schedular consideration

Generally, evaluating a disability using either the corresponding or analogous Diagnostic Codes contained in the rating schedule is sufficient.  See 38 C.F.R. § 4.20, 4.27.  For exceptional cases, VA has authorized the assignment of extraschedular ratings and provided the following guidance for awarding such ratings:

To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, [C & P], upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.  The governing norm in these exceptional cases is:  A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b).

As the Court recently explained in Thun, a "determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry."  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If the RO or Board determines that (1) the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extraschedular rating is warranted.  Neither the RO nor the Board is permitted to assign an extraschedular rating in the first instance; rather the matter must initially be referred to those officials who possess the delegated authority to assign such a rating.  See Floyd v. Brown, 9 Vet. App. 88, 95 (1996).  Anderson v. Shinseki, 22 Vet. App. 423 (2009).  

In the current case, the Board finds that the schedular criteria are adequate to evaluate the Veteran's level of disability and symptomatology from his service-connected bilateral hearing loss.  No referral to the Under Secretary for Benefits or the Director of VA's Compensation and Pension Service would thus appear to be warranted.  


ORDER

A disability rating greater than 10 percent for bilateral hearing loss is denied.




____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs