Citation Nr: 1220105 Decision Date: 06/07/12 Archive Date: 06/20/12 DOCKET NO. 09-31 430 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss. ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran served on active duty from October 1986 to May 2007. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont that, in pertinent part, established service connection for bilateral hearing loss and assigned an initial noncompensable (zero percent) disability rating, effective June 1, 2007. The RO in Atlanta, Georgia currently has jurisdiction over the appeal. The Veteran was scheduled to testify at a hearing to be held in October 2011 at his local RO. Prior to the hearing, he cancelled his request in writing. Accordingly, the hearing request is deemed withdrawn. FINDING OF FACT Since the grant of service connection, the Veteran has had, at worst, Level I hearing in the right ear and Level I hearing in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.85, 4.86, Diagnostic Code (DC) 6100 (2011). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The claim for an increased rating for hearing loss arises from a disagreement with the initial disability rating that was assigned 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). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the claim has been obtained. The Veteran's service and private treatment records have been obtained. He has not indicated there are any additional records that VA should seek to obtain on his behalf. He also was provided with a VA examination in April 2011. The Board finds that the VA examination report is adequate for evaluation purposes because the examiner conducted a clinical evaluation, reviewed the medical history, and described the disability in sufficient detail so that the Board's evaluation of the claimed disability is an informed determination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Further, in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the United States Court of Appeals for Veterans Claims (Court), noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2010). The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused b a deficiency in the examination. In this case the examiner at the April 2011 VA examination specifically addressed the effect of the Veteran's hearing loss on his occupation and daily activities. Thus, the Board finds that the examination was adequate. Further, the Veteran has not alleged, nor does the record show, that his service-connected hearing loss disability has worsened in severity since the examination. As such, a new examination is not required. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. Finally, this claim was previously before the Board and was remanded in March 2011. The RO was instructed to obtain any additional records and provide the Veteran an audiological examination; this was accomplished. The claim was also remanded in July 2011 to afford Veteran the opportunity to testify at a Travel Board hearing, which he later cancelled. There has been substantial, if not full, compliance with the Board's remand directives. Analysis Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Where the appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). Hearing loss ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with average hearing thresholds determined by puretone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 cycles per second. "Puretone threshold average" is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz divided by four. This average is used in all cases (including those in §4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85, DC 6100. The rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. 38 C.F.R. § 4.85. The horizontal rows in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect. See 38 C.F.R. §§ 4.85, 4.87. The regulations also provide that in cases of exceptional hearing loss, i.e. when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the Roman numeral designation will be determined for hearing impairment, separately, from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86. A Roman numeral designation will also be determined from either Table VI or Table VIa, whichever results in the higher numeral, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. That numeral will then be elevated to the next higher Roman numeral. Service connection for bilateral hearing loss was granted in a May 2008 rating decision. The RO assigned a noncompensable rating effective from June 1, 2007. The Veteran underwent a VA fee-based audiology examination in December 2007 where he reported difficulty hearing and understanding some conversations on a daily basis. The puretone thresholds were provided in graph form, and not in decibels for each frequency, such that the Board is able to determine the level of severity of the hearing impairment affecting the each ear. See 38 C.F.R. § 4.85; Kelly v. Brown, 7 Vet. App. 471, 474 (1995)(The Board may not interpret graphical representations of audiometric data.). However, the examiner noted that the evaluation revealed normal hearing with a moderate sensorineural hearing loss notch between 3000 and 6000 Hz in the right ear. In the left ear, hearing was normal through 1000 Hz, sloping to a moderate sensorineural hearing loss to 3000 Hz, and rising back to normal at 8000 Hz. Speech discrimination was 92 percent in the left ear and 100 percent in the right ear. A DD Form 2216E (Army Hearing Conservation Data report) dated in February 2009 revealed pure tone hearing threshold levels at 1000, 2000, 3000, and 4000 Hertz were 0, 20, 40 and 55 decibels on the right; and -5, 35, 60 and 55 decibels on the left. The Board has calculated puretone averages to be 28.75 on the right side and 36.25 on the left side. These results correspond to Level I hearing on the right and Level I hearing on the left pursuant to Table VIA. These results further correspond to a noncompensable evaluation pursuant to Table VII. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Another DD Form 2216E dated in February 2010 revealed pure tone hearing threshold levels at 1000, 2000, 3000, and 4000 Hertz were 0, 15, 45, and 45 decibels on the right; and 0, 30, 55, and 40 decibels on the left. The Board has calculated puretone averages to be 26.25 on the right side and 31.25 on the left side. These results correspond to Level I hearing on the right and Level I hearing on the left pursuant to Table VIA. These results further correspond to a noncompensable evaluation pursuant to Table VII. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A March 2010 private audiogram revealed pure tone threshold levels, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT N/A 05 20 45 45 LEFT N/A 00 15 55 55 Pure tone threshold levels averaged 29 decibels for the right ear and 31 decibels for his left ear. Speech discrimination testing was not performed and these findings reflect level I hearing in both ears. See 38 C.F.R. § 4.85, Table VIA. Another DD Form 2216E dated in February 2011 revealed pure tone hearing threshold levels at 1000, 2000, 3000, and 4000 Hertz were 0, 20, 50, and 55 decibels on the right; and 0, 30, 55 and 50 decibels on the left. The Board has calculated puretone averages to be 31.25 on the right side and 33.75 on the left side. These results correspond to Level I hearing on the right and Level I hearing on the left pursuant to Table VIA. These results further correspond to a noncompensable evaluation pursuant to Table VII. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. At a VA compensation and pension (C&P) audiology examination in April 2011, the Veteran reported that he did not understand conversation well if the person speaking is not looking at him or if there is another person in the room. The examiner commented that this hearing difficulty had a significant effect on the Veteran's occupational functioning as a result. Pure tone hearing threshold levels at 1000, 2000, 3000, and 4000 Hertz were 5, 40, 55, and 55 decibels on the right; and 5, 25, 55, and 55 decibels on the left. Puretone averages were 38.75 on the right side and 35 on the left side. Speech discrimination testing was 94 percent in both ears. These results correspond to Level I hearing on the right and Level I hearing on the left pursuant to Table VI. These results further correspond to a noncompensable evaluation pursuant to Table VII. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Board does not discount the difficulties that the Veteran has with his auditory acuity. However, 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. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Based on the audiological evaluation, there is no evidence that the Veteran's bilateral hearing loss has approximated the criteria for a compensable evaluation at any time during this appeal. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the Board finds that the rating criteria contemplate the Veteran's hearing loss disability for entire duration of this appeal. The hearing loss disability is productive of decreased hearing acuity and this manifestation is contemplated in the respective applicable rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of an extraschedular rating is not warranted. Finally, the Court has held that entitlement to a TDIU is an element of all appeals for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. As there is no evidence of unemployability, the question of entitlement to a TDIU is not raised. ORDER An initial compensable rating for bilateral hearing loss is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs