Citation Nr: 1300932	
Decision Date: 01/09/13    Archive Date: 01/16/13

DOCKET NO.  09-18 931A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an initial compensable disability rating for bilateral hearing loss for the period from September 10, 2007, to March 26, 2012. 

2.  Entitlement to a rating higher than 20 percent for bilateral hearing loss for the period since March 27, 2012.


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


ATTORNEY FOR THE BOARD

Tiffany Berry, Associate Counsel 



INTRODUCTION

The Veteran had active service from September 1951 to September 1955. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 RO rating decision that, in pertinent part, granted service connection and a noncompensable rating for bilateral hearing loss, effective September 10, 2007.  

In April 2011 and January and May 2012, the Board remanded this appeal for further development.  An April 2012 RO decision increased the rating for the Veteran's bilateral hearing loss to 20 percent, effective March 27, 2012.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  The results of the audiogram submitted in September 2007 are not adequate for rating purposes because the absence of a pure-tone finding at the 3000 Hertz level for the left ear.  

2.  The report of the December 2007 VA compensation examination, the only probative evidence for the initial period from September 10, 2007, to March 26, 2012, shows the Veteran has had, at worst, Level I hearing in the left ear and Level II hearing in the right ear.

3.  The results of the March 27, 2012, VA audiological evaluation show the Veteran has Level IV hearing in the right ear and Level VI hearing in the left ear, based on pure-tone readings only, and supports assigning the higher 20 percent disability rating as of March 27, 2012.  

4.  The results of the June 12, 2012 VA audiological evaluation show the Veteran has Level I hearing in the right ear and Level III hearing in the left ear.


CONCLUSIONS OF LAW

1.  The criteria are not met for an initial compensable rating for bilateral hearing loss for the period from September 10, 2007, to March 26, 2012.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.85, 4.86, Diagnostic Code 6100 (2012).

2.  The criteria for a disability rating higher than 20 percent for bilateral hearing loss since March 27, 2012, are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.85, 4.86, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

The Veteran's appeal arises from his disagreement with the initial evaluations following the grant of service connection.  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 claims.  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 finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the claims has been obtained.  The Veteran's service treatment records and VA 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 VA examinations in December 2007, and March and June 2012.  

In January 2012, the Board remanded this case in order for the Veteran to undergo a contemporaneous VA audiological evaluation because he was last evaluated in December 2007 in connection with his initial claim for service connection and because the December 2007 VA examiner did not comment on the specific functional effects of the Veteran's hearing loss disability.  As such, the Board determined this December 2007 examination is inadequate only when considering entitlement to extra-schedular evaluation pursuant to 38 C.F.R. § 3.321(b).  The Veteran underwent this requested examination in March 2012.  However, in the May 2012 remand, the Board determined that the March 2012 VA audiological examination was inadequate for rating purposes.  Consequently, the Veteran was scheduled for an additional VA examination in June 2012 to determine the current severity of his hearing loss, including any functional impairment as a result of his hearing loss.  The Board finds that the June 2012 examination is adequate to evaluate the Veteran's bilateral hearing loss, as it includes an interview with the Veteran, a review of the record, and a full objective physical examination, addressing the relevant rating criteria, and any functional effects of the Veteran's hearing loss on his daily activities, and no further examination is necessary.  

The Board finds that the report of the June 2012 VA examination 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.  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 by a deficiency in the examination.  In this case, the June 2012 VA examination specifically addresses the effect of the Veteran's hearing loss on his occupation and daily activities.  Thus, the Board finds that the examination is adequate. 

Further, the Veteran has not alleged, nor does the record show, that his service-connected hearing loss has worsened in severity since the most recent examination.  As such, a new examination is not required.  See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). 

As a final matter, this claim was initially remanded in April 2011 in order to reschedule the Veteran for a Travel Board hearing since he missed his originally assigned date due an injury.  However, in November 2011, the Veteran's representative submitted a statement withdrawing his request for a Travel Board hearing.  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. 

Therefore, the Board finds that there has been substantial compliance with the remand directives such that no further action is necessary in this regard.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). 

Thus, the Board finds that VA has fully satisfied the duty to assist.  In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided).  VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding.  Therefore, the Board may proceed to the merits of his claim.

II.  Analysis

The Veteran's hearing loss was initially rating at 0 percent, from September 10, 2007 to March 26, 2012, and increased to 20 percent, effective from March 27, 2012.  The Veteran argues his hearing loss is more severe than his disability ratings reflect.  Specifically, following the December 2007 VA compensation examination, the Veteran stated the December 2007 VA compensation examiner did not remove the hearing aid from the Veteran's left ear because he thought the Veteran only had one hearing aid.  As such, he asserts that his hearing was worse than the audiometric results showed in the December 2007 VA compensation examination.  

Since the Veteran's claim arises from his disagreement with the initial rating assigned following the granting of service connection in December 2007 for his bilateral hearing loss, some discussion of the Fenderson case is warranted.  Fenderson v. West, 12 Vet. App. 119, 125-126 (1999).  In Fenderson, the Court noted the distinction between a new claim for an increased evaluation of a service-connected disability and a case, as here, in which the Veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been service connected.  In the former situation, the Court held in Francisco v. Brown, 7 Vet. App. 55, 58 (1994), that the current level of disability is of primary importance.  See also, however, Hart v. Mansfield, 21 Vet App 505 (2007) (a decision of the Court holding that, in determining the present/current level of disability for any increased-evaluation claim, the Board must consider whether the rating should be "staged").  Similarly, in the latter Fenderson scenario, where, as here, the Veteran has expressed dissatisfaction with the assignment of an initial rating, VA also must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim -a practice known as "staged rating."  Fenderson, 12 Vet. App. 125-126.

As stated, the Veteran's bilateral hearing loss was originally evaluated as noncompensable (i.e., 0 percent), effective from September 10, 2007, the date of receipt of his claim.  But, as mentioned, this initial rating since has been increased to 20 percent as of March 27, 2012, the date of a VA compensation examination indicating a worsening of his hearing acuity to this greater level.  So in deciding this claim, the Board has to consider whether he was entitled to a rating higher than 0 percent from September 10, 2007 to March 26, 2012, and whether he has been entitled to a rating higher than 20 percent since March 27, 2012.

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate Diagnostic Codes.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012).

The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10 (2012).

If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3.

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21.  Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

In making these determinations for a hearing loss claim, it is important for the Veteran to understand that the assignment of disability ratings for hearing impairment are derived by a mechanical, i.e., nondiscretionary application of the rating schedule to the numeric designations based on the examination results.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).

Evaluations of bilateral hearing loss range from noncompensable (i.e., 0 percent) to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test (Maryland CNC) and the average hearing threshold, as measured by puretone audiometric tests at the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz.  The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through level XI for profound deafness.

Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination) is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns).  The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone average intersect.  38 C.F.R. § 4.85(b).  The puretone threshold average is the sum of the puretone thresholds at 1,000, 2,000, 3,000 and 4,000 Hertz, divided by 4.  This average is used in all cases to determine the Roman numeral designation for hearing impairment.  38 C.F.R. § 4.85(d).

Table VII, (Percentage Evaluations for Hearing Impairment) is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poor hearing.  The percentage evaluation is located at the point where the rows and column intersect.  38 C.F.R. § 4.85(e).

VA regulations also provide that, in cases of exceptional hearing loss, when the puretone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(a).  The provisions of 38 C.F.R. § 4.86(b) further provide that, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or 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.

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). 

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See id. at 303-04.

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").


For the Period from September 10, 2007, to March 26, 2012

As an initial matter, VA treatment records for this period on appeal are associated with the claims file.  However, these treatment records do not contain any additional audiometric findings for consideration of whether the Veteran is entitled to an initial compensable disability rating for bilateral hearing loss.

The evidence of record for this initial period on appeal includes an August 2007 VA audiological consult and accompanying audiogram.  His word recognition scores were 76 percent in the right ear and 88 percent in the left ear.  The results of this audiogram are presented in an uninterrupted graphical format.  The United States Court of Appeals for Veterans Claims (Court) in Kelly v. Brown, 7 Vet. App. 471 (1995) stated the Board is empowered to make factual findings in the first instance and may also remand uninterpreted audiograms for interpretation.  Therefore, based on the Board's interpretation of this audiogram, the Veteran's puretone thresholds in decibels are as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
XX
35
70
70
80
LEFT
XX
30
60
--
65

Unfortunately, this audiogram is inadequate for rating purposes as the Veteran's puretone threshold at the 3000 Hertz level is missing.  Since this score is not available, an average puretone threshold level for the left ear cannot be obtained.  The Board notes the Court recently held that, pursuant to 38 U.S.C.A. § 5103A(a), when a private examination report "reasonably appears" to contain information necessary to properly decide a claim but is "unclear" or "not suitable for rating purposes," and the information reasonably contained in the report otherwise cannot be obtained, VA has a duty to either (1) ask the private examiner to clarify the report, (2) request that the claimant obtain the necessary information to clarify the report, or (3) explain why such clarification is unreasonable.  Savage v. Shinseki, 24 Vet. App. 259, 269 (2011).  

However, the Board finds the holding in Savage is distinguishable for several reasons.  First, the Board notes this is an uninterrupted VA audiogram, as opposed to a private audiogram, as was the situation in Savage.  Secondly, the missing left ear pure-tone threshold reading at the required 3000 Hertz level is not obtainable and may not be recreated.  Therefore, the results of this audiogram are of limited, if any, probative value in substantiating the Veteran's claim for a compensable rating for the initial period on appeal.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

The Veteran was provided a VA audiological evaluation in December 2007, in connection with his claim of service connection for bilateral hearing loss.  His puretone thresholds, in decibels, were as follows:
	



HERTZ



500
1000
2000
3000
4000
RIGHT
XX
25
45
55
75
LEFT
XX
20
50
65
75

The average puretone threshold was 50 decibels in the right ear and 52.5 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 84 percent for the right ear, and 92 percent for the left ear.

Applying the results of that December 2007 examination to Table VI yields values of Level I for the left ear and Level II for the right ear.  Applying these values to Table VII indicates his bilateral hearing loss at that time was noncompensable, i.e., 0 percent, disabling. 

The Board is aware of the Veteran's argument that the December 2007 VA examiner did not have the Veteran remove both of his hearing aids prior to the commencement of the examination as required by 38 C.F.R. § 4.85.  However, there is no evidence in the report of the December 2007 VA examination to support the Veteran's assertion as to the inadequacy of the auditory findings.  Further, "[t]here is a presumption of regularity under which it is presumed that government officials 'have properly discharged their duties.'"  Sthele v. Principi, 19 Vet. App. 11, 16 (2004) (quoting Ashley v. Derwinski, 2 Vet. App. 307, 308-309 (1992).  Therefore, the Board may presume the December 2007 test was conducted in accordance with VA regulations.  

Furthermore, in the January 2012 remand, the Board already determined the December 2007 VA examination was inadequate for rating purposes insofar as it did not consider information concerning the specific functional effects of the Veteran's hearing loss disability for extra-schedular consideration.  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 (2009)[(2012)]; Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). 

Nevertheless, after considering all the evidence of record for this initial period, the audiometric results sufficient for rating purposes pursuant to 38 C.F.R. § 4.85 do not warrant an initial compensable disability rating for the period from September 10, 2007 to March 26, 2012.

The Veteran also does not have the type of exceptional hearing impairment contemplated by 38 C.F.R. § 4.86(a) and (b), so this regulation does not apply.

For the Period Since March 27, 2012

As a consequence of the January 2012 Board remand, the Veteran underwent a VA audiological evaluation in March 2012.  At that time, his puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
XX
25
65
60
75
LEFT
XX
30
70
70
80

The average puretone threshold was 56 decibels in the right ear and 63 decibels in the left ear.  The examiner reported that the poor speech recognition scores obtained at the time of this examination were inconsistent with the Veteran's observed communication abilities and that significantly better scores were obtained pursuant to August 2007 and December 2007 VA audiograms with similar pure tone thresholds, overall.  The examiner indicated that the speech recognition scores were unreliable and unsuitable for rating purposes, and that they, therefore, were not reported.  The examiner indicated that, in his opinion, only pure-tone results should be used to evaluate the Veteran.

Consequently, the RO applied the results of this March 2012 examination to Table VIA, using only the pure-tone results.  Table VIA yields a Roman numeral value of IV for the right ear and VI for the left ear, which established a 20 percent disability rating when computed under Table VII.  Based on these results, the Veteran's rating was increased to 20 percent, effective March 27, 2012, the date of this VA audiological examination.  

The examiner also stated that the Veteran reported he cannot understand people when they are talking to him, and he did not watch TV unless it is a football game because he does not care what the announcer says.  The Veteran also reported that he does not understand women.  Overall, the examiner stated that the Veteran's hearing loss and tinnitus, when considered without regard to other disabilities, do not render the average person unable to perform all types of sedentary and physical employment.  As such, the Veteran's hearing loss should not be a barrier to a wide range of employment settings.  The examiner acknowledged the Veteran's hearing loss could possibly cause some problems, depending on vocation, and he may have some trouble understanding speech, women's voices, or difficulty hearing in groups, as he alleges, particularly in very noisy environments.  Nevertheless, the examiner concluded people with the Veteran's degree of hearing loss function in many occupational settings.  

In May 2012, the Board determined that the March 2012 examination was inadequate for rating purposes because the results of a pure tone audiometry test were not reported in the record as required by 38 C.F.R. § 4.85(a).  As a result, the Veteran was again scheduled for a VA audiological examination in June 2012.

His puretone thresholds, in decibels, at the time of the June 2012 examination were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
XX
25
65
60
75
LEFT
XX
35
70
70
80

The average puretone threshold was again found to be 56 decibels in the right ear and 64 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 92 percent for the right ear, and 84 percent for the left ear.

Applying the results of this June 2012 examination to Table VI yields values of Level I for the right ear and Level III for the left ear.  Applying these values to Table VII indicates his bilateral hearing loss is again found to be noncompensable, i.e., 0 percent disabling.  

The VA examiner also commented that the Veteran reported difficulty with speech understanding in the presence of multiple talkers, which is a common complaint of those individuals that have a noise induced hearing loss due to greater hearing loss in the higher frequencies.  The examiner again stated that the Veteran's hearing loss and tinnitus, when considered without regard to other disabilities, do not render the average person unable to perform all types of sedentary and physical employment.  

The Veteran also does not have the type of exceptional hearing impairment contemplated by 38 C.F.R. § 4.86(a) and (b), so this regulation does not apply.

The results of the initial VA compensation examination in December 2007 show the Veteran's bilateral hearing loss was 0 percent disabling, meaning noncompensable, since he had Level I hearing his left ear and Level II hearing in his right ear.  See again 38 C.F.R. § 4.85, Table VII.  He did not meet the requirements for the higher 20 percent rating until the March 2012 VA compensation examination.  However, the results of the most recent VA examination in June 2012 do not support assigning a rating in excess of 20 percent.  At no time does the evidence support his assertion he had a compensable level of bilateral hearing loss prior to March 27, 2012, or hearing loss more severe than 20 percent disabling at any time since, so the Board cannot further "stage" this rating.  See Fenderson, 12 Vet. App. at 125-26.  

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).  

The Board finds that the rating criteria contemplate the symptomatolgy as reported by the Veteran concerning his bilateral hearing loss.  The Veteran has reported difficulty hearing women's voices, problems hearing in crowds, and hearing the TV, which are contemplated by the schedular rating criteria of Diagnostic Code 6100.  Therefore, the rating criteria are therefore adequate to evaluate the Veteran's bilateral hearing loss disability and referral for consideration of extraschedular rating is not warranted.

In Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the Court held that when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a total disability rating based on individual unemployability (TDIU) will be considered "part and parcel" of the claim for benefits for the underlying disability.  In the instant case, the Veteran has not alleged that his bilateral hearing loss causes him to be unemployable.  Therefore, the Board finds that a claim for TDIU is not raised by the Veteran or reasonably raised by the record and, as such, need not be further addressed.

In sum, as the preponderance of the evidence is against the claim for increased ratings, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 


ORDER

Entitlement to an initial compensable disability rating for bilateral hearing loss from September 10, 2007, to March 26, 2012, is denied.

Entitlement to a disability rating higher than 20 percent for bilateral hearing loss since March 27, 2012, is denied.  



____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs