Citation Nr: 1301080	
Decision Date: 01/10/13    Archive Date: 01/16/13

DOCKET NO.  08-03 543	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Wilmington, Delaware


THE ISSUE

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


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARINGS ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

W.T. Snyder, Counsel


INTRODUCTION

The Veteran had active service from July 1971 to March 1978, followed by continued membership in the Reserve. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware, that continued a noncompensable rating for the Veteran's bilateral hearing loss.  The September 2009 rating decision also denied his claim for entitlement to service connection for an anxiety disorder, from which the Veteran perfected a timely appeal. 

The Veteran testified before the undersigned at a February 2011 Board hearing via video conference.

A May 2011 Board decision allowed entitlement to service connection for a general anxiety disorder.  A May 2011 rating decision issued by the Appeals Management Center (AMC) in Washington, DC, awarded service connection for a generalized anxiety disorder with an initial 30 percent rating, effective in April 2001.  This represented a full grant of the benefit sought on appeal.  38 C.F.R. § 20.200 (2012); see also Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and the effective date).

A November 2005 rating decision of the Philadelphia, Pennsylvania, RO denied entitlement to service connection for obstructive sleep apnea (OSA), which the Veteran appealed.  The May 2011 Board decision remanded the claim to the AMC for additional development.  While on remand, an October 2012 rating decision awarded entitlement to service connection for OSA with an initial 50 percent rating, effective in December 2004.  As with the generalized anxiety disorder, this represented a full grant of the benefit sought on appeal.  See id.

The May 2011 Board decision also remanded the Veteran's bilateral hearing loss claim to the AMC for additional development.  The AMC completed the additional development as directed, continued to deny a compensable rating, and returned the case to the Board for continued appellate review.

As indicated above, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process.  The Board has reviewed the contents of the paperless file, and there are currently no pertinent records that are not also in the paper claims file.  Nonetheless, any further development or adjudication of this matter should take into account this paperless claims file.


FINDINGS OF FACT

1.  The AMC completed all of the additional development directed in the May 2011 Board remand.

2.  The preponderance of the evidence shows the Veteran's bilateral hearing loss manifested at Level I in each ear prior to June 2011, and Level II as of June 2011.  An exceptional pattern of hearing loss did not manifest at any time during the current rating period.



CONCLUSION OF LAW

The requirements for a compensable rating for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.10, 4.31, 4.85, 4.86, Diagnostic Code (DC) 6100 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The requirements of the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126, have been met.  There is no issue as to providing an appropriate application form or completeness of the application.  Prior to issuance of the rating decision appealed, VA notified the Veteran in May 2009 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and notice of how disability evaluations and effective dates are assigned.  The letter was fully time- and content-compliant.  See 38 C.F.R. § 3.159(b); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Hence, the Board finds VA complied with the VCAA notice requirements.
 
VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations.  38 C.F.R. § 3.159(c).  Neither the Veteran nor his representative asserts that there is additional evidence to be obtained.  In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.  See id.  Hence, the Board may address the merits of the appeal without prejudice to the Veteran.

The Board remand was to afford the Veteran a current audiology examination.  He was afforded this examination in June 2011.  The examination report contains all findings needed to rate the disability.  In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability.  Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  The June 2011 VA examination report includes the Veteran's reports of the impact of his disability on daily life.  The functional effects were thereby described.  All needed test results were also recorded.

The United States Court of Appeals for Veterans Claims has interpreted the provisions of 38 C.F.R. § 3.103(c)(2) as imposing two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam).  At the Veteran's hearing the issues were identified.  There was a discussion of possible evidence that could substantiate the claims.  Questioning at the hearing resulted in the remand for another examination.  The Bryant requirements were thereby complied with.

Applicable Law and Regulation

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2011).  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1 (2011).  

VA must also interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability.  38 C.F.R. § 4.2.  VA must resolve any reasonable doubt regarding the degree of disability in favor of the claimant.  38 C.F.R. § 4.3.  Where there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21 (2012). 

VA must also evaluate functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity.  38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The Board will consider entitlement to staged ratings to compensate for times since filing the claim when either disability may have been more severe than at other times during the course of the claim on appeal.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

Analysis

Historically, a January 2008 rating decision awarded entitlement to service connection for bilateral hearing loss with a noncompensable rating, effective in December 2004.  Later that month, the Veteran indicated that he was satisfied with this decision.  VA received the Veteran's current claim for an increased (compensable) rating in January 2009.

In addition to the general requirements applicable to increased rating claims, 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.

The September 2009 audio examination report reflects the Veteran reported his hearing loss had existed since his in-service noise exposure.  His audio examination results were as follows:

Ear
1000
2000
3000
4000
Average
Right
10
25
55
60
38
Left
5
40
65
65
44

Speech recognition was 92 percent in each ear.  The examiner diagnosed a mild sensorineural hearing loss in the right ear and a moderate one in the left ear.

The Board notes that the examiner did not have access to the Veteran's claims file at the examination but finds no prejudice.  The examiner took the Veteran's history and had access to his electronic records.  The objective findings on clinical examination show the Veteran's hearing loss in each ear manifested at Level I.  See Table VI.  Further, an exceptional pattern of hearing loss was not manifested in either ear.  Level I for each ear intersects at the noncompensable rate.  See 38 C.F.R. § 4.85, Table VII.

Although the September 2009 examination report notes the Veteran's speech recognition was 92 percent in each ear, he testified at the Board hearing that he could not hear syllables, and he heard things wrong, especially on the telephone.  See Transcript, pp. 12-13.  As noted earlier, the Board remanded for an examination, as the Veteran testified his hearing loss had increased in severity since the 2009 examination was conducted.

The June 2011 examination report reflects the examiner conducted a review of the claims file as part of the examination.  The Veteran did not report any particular difficulty to the examiner.

The June 2011 audio examination report reflects the Veteran reported his hearing loss had existed since his in-service noise exposure.  His audio examination results were as follows:

Ear
1000
2000
3000
4000
Average
Right
10
50
60
70
48.75
Left
10
45
65
75
47.5

Speech recognition was 84 percent in the right ear, and 88 percent in the left ear.  The examiner diagnosed a moderate sensorineural hearing loss in each ear.

The objective findings on clinical examination show that, while the Veteran's hearing loss did in fact increase in severity, as each ear manifested at Level II.  See 38 C.F.R. § 4.85, Table VI.  The Veteran's hearing loss, however, still does not more nearly approximated a compensable rating, as Level II in each ear intersects at the noncompensable rate.  See 38 C.F.R. § 4.85, Table VII.  Hence, the Board finds the Veteran's bilateral hearing loss is appropriately rated noncompensable.  38 C.F.R. §§ 4.1, 4.10, 4.31, 4.85, 4.86, DC 6100.

The Board notes the Veteran's testimony that he had difficulty understanding communications on his job.  The Board also notes the audio examiner's notation that the Veteran's hearing loss impacts his ability to understand verbal directions and instructions in background noise and when the Veteran was not facing the speaker.  Nonetheless, the Board finds no factual basis on which to refer the Veteran's claim for consideration of a compensable rating on an extraschedular basis.  See 38 C.F.R. § 3.321(b)(1).  The manifestations of the disability are diminished hearing acuity and speech discrimination resulting in the reported functional impairment.  The rating schedule contemplates these symptoms.   DC 6100.  The rating schedule is meant to compensate for average impairment in earning capacity and for considerable time lost from work commensurate with the percentage evaluations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Thus, the Board finds that the threshold test is not met for referral for extraschedular consideration.  Id.; see also Thun v. Peake, 22 Vet. App. 111 (2008).

As just indicated, the Board also notes the evidence of record shows the Veteran works full time.  There is no suggestion in the record that the employment is marginal.  Hence, there is no issue as to individual unemployability.  See 38 C.F.R. § 4.16; see generally Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).

In reaching this decision the Board considered the doctrine of reasonable doubt.  As the preponderance of the evidence is against the Veteran's claim, however, the doctrine is not for application.  Schoolman v. West, 12 Vet. App. 307, 311 (1999).


ORDER

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



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs