Citation Nr: 1300629	
Decision Date: 01/08/13    Archive Date: 01/16/13

DOCKET NO.  10-46 851	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas



THE ISSUE

Entitlement to a compensable disability evaluation for service-connected bilateral high frequency hearing loss.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission



ATTORNEY FOR THE BOARD

M. Hudson, Associate Counsel

INTRODUCTION

The Veteran served on active duty from May 1968 to May 1975. 
	
This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (hereinafter VA) Regional Office in Waco, Texas (hereinafter RO) which continued the Veteran's evaluation of service-connected bilateral high frequency hearing loss at zero percent.


FINDING OF FACT

Throughout the rating period on appeal, the Veteran's bilateral high frequency hearing loss was manifested by no worse than Level II impairment in the left ear and no more than Level III impairment in the right ear.


CONCLUSION OF LAW

The criteria for a compensable evaluation for bilateral high frequency hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. § 3.102, 3.159, 3.321, 4.1, 4.85, 4.86, Diagnostic Code 6100 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  VA's Duties to Notify and Assist

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  See also Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010).  

Appropriate pre-adjudication notice was provided in an October 2009 letter, which discussed regulations pertinent to an increased evaluation and information needed to show the impact of the disability on daily life and occupational functioning.  

As for the duty to assist, the Veteran's service treatment records and VA medical treatment records have been obtained.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(1).  The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159(c)(2).  The Veteran has not identified any additional relevant medical records that have not been obtained and associated with his file.  

Two VA examinations have been secured in connection with the current claim for an increased rating.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 310-12 (2007).  The VA examinations obtained in this case are sufficient, as they provided explanations for the opinions stated as well as the medical information necessary to apply the appropriate rating criteria.  VA's duty to assist with respect to obtaining a VA examination has been met.  38 C.F.R. § 3.159(c)(4).  

VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. 

II. Bilateral High Frequency Hearing Loss

In an October 1975 rating decision, the RO granted service connection for bilateral high frequency hearing loss and assigned a noncompensable disability evaluation, effective May 23, 1975, the day after the Veteran's discharge from service.  The Veteran filed a claim for an increased rating for his bilateral high frequency hearing loss disability in 2004.  In August 2004, the RO denied the claim for a compensable evaluation for bilateral high frequency hearing loss.  In 2009, the Veteran filed another claim for an increased rating for his bilateral high frequency hearing loss disability.  In the February 2010 rating action on appeal, the RO denied the claim and continued the Veteran's service-connected bilateral high frequency hearing loss disability at zero percent.

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (rating schedule), which is based upon the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  See 38 C.F.R. § 4.1.

In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

In cases such as this, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58   (1994).  Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible.  Hart v. Mansfield, 21 Vet. App. 505 (2007). 

In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed.  Lendenmann v. Principi, 3 Vet. App. 345 (1992). 

An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test.  38 C.F.R. § 4.85. 
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 1000, 2000, 3000 and 4000 cycles per second, with 11 auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness.  38 C.F.R. § 4.85. 

In addition, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the adjudicator must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). 

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.  38 C.F.R. § 4.86(b). 

A VA audio consultation was conducted in September 2009 at the Shreveport VA Medical Center (VAMC).  The Veteran complained of difficulty understanding speech at times.  Testing revealed the following puretone thresholds, in decibels:





HERTZ



500
1000
2000
3000
4000
RIGHT
45
40
45
65
75
LEFT
35
30
35
60
75

The Veteran was diagnosed with mild to severe sensorineural hearing loss, bilaterally.  The audiologist opined that the Veteran was a candidate for binaural amplification and scheduled the Veteran for a hearing aid evaluation.

In the Veteran's statement in support of his claim in November 2009, he indicated that he was using a hearing aid in his right ear and that his hearing was getting worse.

A VA audio examination was conducted in January 2010.  Testing revealed the following puretone thresholds, in decibels:





HERTZ



500
1000
2000
3000
4000
RIGHT
45
40
45
65
75
LEFT
35
35
35
60
70

Based upon the above findings, the Veteran's puretone average in his right ear was 56.  His puretone average in the left ear was 50.  Speech audiometry revealed speech recognition ability of 84 percent in both ears.  The Veteran was diagnosed with mild to severe sensorineural hearing loss, bilaterally.  The examiner opined that the Veteran's hearing loss has a significant effect on his occupation as he may experience some difficulty with conversational speech, especially in adverse listening conditions.  However, the examiner also found there were no effects on the Veteran's usual daily activities as a result of the hearing loss.

From Table VI of 38 C.F.R. § 4.85, Roman Numeral II is derived for both ears.  These are determined by intersecting the percent of speech discrimination row with the puretone threshold average column.  Either ear can be used as the poorer ear for 38 C.F.R. § 4.85 's Table VII as they both equate to the same Roman Numeral.  A zero percent evaluation is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row II, the better ear, with column II, the poorer ear. 

In November 2010, the Veteran stated in his Appeal that his "hearing has gotten steadily worse - it is real hard sometimes to understand simple conversations."

Hearing acuity was measured again during a May 2011 VA audio examination, which revealed the following puretone thresholds, in decibels:






HERTZ



500
1000
2000
3000
4000
RIGHT
40
50
50
70
80
LEFT
45
45
45
70
80

Based upon the above findings, the Veteran's puretone average in his right ear was 62.  The puretone average in his left ear was 60.  Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 96 percent in the left ear.  The Veteran was diagnosed with mild to severe sensorineural hearing loss in his right ear and moderate to severe sensorineural hearing loss in his left ear.  The examiner stated that the Veteran's hearing loss has significant effects on his occupation.  However, the examiner also found there were no effects on the Veteran's usual daily activities as a result of the hearing loss.

From Table VI of 38 C.F.R. § 4.85, Roman Numeral II is derived for the left ear and Roman Numeral III is derived for the right ear.  These are determined by intersecting the percent of speech discrimination row with the puretone threshold average column.  A zero percent evaluation is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row II, the better ear, with column III, the poorer ear.  

The findings of the aforementioned VA examinations, as applied to the rating criteria for hearing impairment, show that the criteria for a compensable evaluation for bilateral high frequency hearing loss have not been met. 

The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing.  The symptoms associated with the Veteran's bilateral hearing loss (i.e., difficulty hearing and understanding speech) are contemplated by the rating criteria and the medical evidence fails to show anything unique or unusual about the Veteran's bilateral hearing loss that would render the schedular criteria inadequate.  The Veteran's main complaint is reduced hearing acuity, which is precisely what is contemplated in the rating assigned.  The January 2010 and May 2011 examiners specifically noted the Veteran's complaints regarding the effect of hearing loss on occupational function and on daily activities.  See generally Martinak v. Nicholson, 21 Vet. App. 447 (2007).  As the available schedular criteria for this service-connected disability are adequate, referral for consideration of an extraschedular rating is not warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  

The Board finds the preponderance of the evidence is against the Veteran's claim for an increased, compensable evaluation for bilateral high frequency hearing loss.  Consequently, the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 55.

Total Rating for Compensation Based on Individual Unemployability (TDIU)

TDIU is an element of all appeals of an increased rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Entitlement to TDIU is raised where a Veteran : (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability.  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  However, TDIU is not raised in an increased rating claim unless the Roberson requirements are met.  Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009).  

While there is evidence that the service-connected hearing loss has significant occupational effects, the record is negative for evidence of unemployability.  The August 2009 VAMC out-patient records note that the Veteran currently works as a maintenance man.  Additionally, the May 2011 VA examination states that the Veteran worked for 35 years in construction/plumbing/welding and also worked in maintenance at an assistive living facility.  Hence further consideration of TDIU is not warranted. 

ORDER

Entitlement to a compensable evaluation for bilateral high frequency hearing loss is denied.




____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs