Citation Nr: 1302896	
Decision Date: 01/25/13    Archive Date: 01/31/13

DOCKET NO.  09-20 739	)	DATE
	)
	)

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


THE ISSUE

Entitlement to an initial compensable rating for bilateral hearing loss.  


REPRESENTATION

Veteran represented by:  Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Catherine Cykowski, Counsel


INTRODUCTION

The Veteran had active duty service from February 1970 to March 1976.

This matter comes before the Board of Veterans' Appeals on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  

In June 2011, the Veteran testified before the undersigned Acting Veterans Law Judge at a hearing at the RO.  A transcript of the hearing is of record. 

The Board previously remanded this matter in May 2012 in order to obtain a VA examination.  The Board is satisfied that there was substantial compliance with these remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998). 


FINDING OF FACT

Throughout the appeal period, the Veteran has had no worse than Level I hearing acuity in either ear.


CONCLUSION OF LAW

The criteria for an initial compensable evaluation for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1 , 4.7, 4.85, Diagnostic Code 6100 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

I.  VA's Duties to Notify and Assist

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. 
§ 5103(a); 38 C.F.R. § 3.159(b).  In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a  Supplemental Statement of the Case).  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). 

In this case, a January 2008 letter notified the Veteran of the elements to substantiate the claim for service connection for bilateral hearing loss.  This letter informed the Veteran of VA's duties for obtaining evidence.  The letter also advised the Veteran of how disability ratings and effective dates are determined.   

It is noted that the RO did not provide the Veteran with additional notice of the evidence required to substantiate his claim for a higher initial rating for bilateral hearing loss.  In Dingess, the Court held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  See Dingess, 19 Vet. App. at 490-91.  Rather, the RO must issue a Statement of the Case (SOC).  Id.   The RO issued an SOC in January 2012 that advised the Veteran of the pertinent laws and regulations and the reasons for the decision.

VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal.  38 U.S.C.A. § 5103A ; 38 C.F.R. § 3.159(c).  This duty includes obtaining "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2) , as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1).  VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim.  38 C.F.R. § 3.159(c)(4). 

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO has obtained VA and private treatment records.  The Veteran was afforded adequate VA medical examinations.  38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

II.  Analysis of Claim

The Veteran has appealed the initial non-compensable rating assigned for his service-connected bilateral hearing loss disability.  The Veteran asserts that a higher rating is warranted.

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, 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).  If two evaluations are potentially applicable, 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 (2012). 

Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for the disability is disputed, separate or "staged" evaluations may be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2008).  

In other cases, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  In both claims for an increased rating on an original claim and an increased rating for an established disability, only the specific criteria of the Diagnostic Code are to be considered.  Massey v. Brown, 7 Vet. App. 204, 208 (1994).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in the case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Veteran's hearing loss disability has been evaluated pursuant to 38 C.F.R. 
§ 4.85, Diagnostic Code (DC) 6100 (2012).  Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction 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.  The rating schedule establishes 11 auditory acuity levels designated from level I for essentially normal acuity through level XI for profound deafness.  38 C.F.R. § 4.85 (2012).  The degree of disability resulting from service-connected defective hearing is mechanically determined by applying the numeric designations assigned to the rating schedule after audiometric evaluations are conducted.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Results of the evaluations are analyzed using Tables VI, VIA and VII, identified in 38 C.F.R. § 4.85. 

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.  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 under 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 then be evaluated separately.  38 C.F.R. § 4.86(b)  (2012). 

In November 2007, the Veteran submitted a statement from his private physician.  The Veteran's physician noted that he had hearing tests in February 2003 and August 2007, which both showed moderate sensorineural hearing loss between 2000 and 6000 Hz, and at the moderate to severe level at 4000 Hz.  He also had intermittent ringing in his ear.  

The Veteran had a VA examination in March 2008.  Audiological testing obtained the following puretone thresholds, in decibels:


500
1000
2000
3000
4000
RIGHT
10
15
10
45
50
LEFT
10
10
10
25
50

The average puretone thresholds were 30 Hz in the right ear and 24 Hz in the left ear.  Speech audiometry revealed speech recognition ability of 100 percent in both ears.  Applying these values to Table VI, a numeric designation of Level I is obtained for both ears.  Table VII provides that a non-compensable (zero percent) evaluation is assignable for these designations. 

The Veteran had a VA examination in May 2012.  Audiological testing obtained the following puretone thresholds, in decibels:


500
1000
2000
3000
4000
RIGHT
10
15
15
50
60
LEFT
10
15
20
35
60

The average puretone thresholds were 35 in the right ear and 32 in the left ear.  Speech discrimination scores were 100 percent in the right ear and 96 percent in the left ear.  

When the puretone threshold values obtained from the May 2012 examination are applied to Table VI, a numeric designation of Level I is obtained for both ears.  Table VII provides that a non-compensable (zero percent) evaluation is assignable for these designations.  

The Board has considered the Veteran's statements and the lay statements submitted on his behalf.  At the hearing in June 2011, the Veteran testified regarding how his hearing loss affects his employment.  The Veteran testified that he is a repairman for a phone company.  He stated that he has trouble hearing tones when he is splicing fiber.  He also testified that he sometimes has difficulty understanding what people are saying to him in meetings.  

In a January 2008 lay statement, a co-worker, A.L., noted that the Veteran has difficulty understanding some conversations, tends to speak louder in certain situations and sometimes asks others to repeat what they have said.  

A January 2008 statement from the Veteran's wife noted that the Veteran's hearing loss has been gradual but progressive.  She stated that the Veteran's hearing loss is frustrating for the Veteran and his family members and co-workers.  

A letter from a supervisor, D.S., received in January 2008, noted that he has known the Veteran for 15 years and is aware that the Veteran has difficulty with his hearing.  The Veteran is competent to state how he experiences symptoms, such as difficulty hearing others, that require only personal knowledge as it comes to him through his senses, and others are also competent to report their observations regarding his  hearing loss.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  However, the competent medical evidence does not establish that the Veteran's disability picture meets the criteria necessary for an initial compensable rating under Diagnostic Code 6100. 

In Martinak v. Nicholson, 21 Vet. App. 447, 453-4 (2007), the Court held that, relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  The Court's rationale in requiring an examiner to consider the functional effects of a Veteran's hearing loss disability involves the potential application of 38 C.F.R. § 3.321(b) in considering whether referral for an extra-schedular rating is warranted.  Specifically, the Court noted that
 
[U]nlike the rating schedule for hearing loss, § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extra-schedular rating is warranted.  The Secretary's policy [requiring VA audiologists to describe the effect of a hearing disability on a Veteran's occupational functioning and daily activities] facilitates such determinations by requiring VA audiologists to provide information in anticipation of its possible application.

Id.

The May 2012 VA examination is in compliance with the holdings of the Martinak case.  The examiner reviewed the claims file and noted the Veteran's history regarding the onset of his hearing loss.  The examiner also noted the current effects of the Veteran's hearing loss on his occupational and recreational functioning, and did not indicate there existed an unusual functional impairment resulting from his current symptoms.  

Based on the foregoing, the Board finds that the criteria for a compensable rating for service-connected bilateral hearing loss have not been met.  In reaching this determination, the Board has considered the benefit of the doubt.  As there is a preponderance of the evidence against the claim, reasonable doubt may not be resolved in the Veteran's favor.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 

III.  Extraschedular considerations

Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the Veteran.  See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (claim for an increased rating includes consideration of whether a total disability rating by reason of individual unemployability is warranted under the provisions of 38 C.F.R. 
§ 4.16).  Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  38 U.S.C.A. 
§ 1155; 38 C.F.R. Part 4.  To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment.  38 C.F.R. § 3.321(b)(1). 

The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards.  Id.  The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. 
§ 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations.  Floyd v. Brown, 9 Vet. App. 88 (1996).  The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual.  Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology.  Id. at 115.  If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops.

If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 116.  If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating.  Id.  

In this case, the symptoms described by the Veteran fit appropriately with the criteria found in the relevant Diagnostic Codes for the disability at issue.  The Board observes the Veteran has not required hospitalization for his service-connected hearing loss during the pendency of this appeal, and has remained employed.  Additionally, no examiner has stated the Veteran's service-connected disability alone is the cause of any marked interference with employment; on examination in May 2012, a VA examiner concluded the Veteran's hearing loss would cause little, if any, problem in maintaining gainful employment.  In short, the rating criteria contemplate not only his symptoms but the severity of his disability. The Board does not find that the schedular criteria have been inadequate for rating the manifestations of the service-connected disability.  See 38 U.S.C.A. § 1155  (Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity).  For these reasons, referral for extraschedular consideration is not warranted. 


ORDER

Entitlement to a compensable rating for bilateral hearing loss is denied.



____________________________________________
THOMAS D. JONES
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs