Citation Nr: 1303308	
Decision Date: 01/31/13    Archive Date: 02/05/13

DOCKET NO.  12-12 155	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake City, Utah



THE ISSUE

Entitlement to a compensable rating for bilateral hearing loss.



REPRESENTATION

Appellant represented by:	James M. McElfresh II, Agent



ATTORNEY FOR THE BOARD

J. Chapman, Associate Counsel




INTRODUCTION

The appellant is a Veteran who served on active duty from January 1959 to March 1962.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Salt Lake City, Utah Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for bilateral hearing loss, rated 0 percent, effective July 23, 2010 (date of claim).


FINDING OF FACT

At no time since July 23, 2010 is the Veteran's hearing acuity shown to have been worse than level I in the right ear or Level II in the left ear.


CONCLUSION OF LAW

A compensable rating for bilateral hearing loss is not warranted.   38 U.S.C.A. §§ 1155, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.85, 4.86, Diagnostic Code (Code) 6100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).
 
As the rating decision on appeal granted service connection for bilateral hearing loss and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  A February 2012 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an increased initial rating and readjudicated the matter.  38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006).  The Veteran has had ample opportunity to respond/supplement the record. He has not alleged that notice in this case was less than adequate.  See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) ("where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error).

The RO arranged for VA examinations in October 2010 and in June 2012.  A review of the examination reports show that they contain sufficient clinical findings and informed discussion of the pertinent history and features of the disability on appeal to provide probative medical evidence adequate for rating purposes.  The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary.  See generally 38 C.F.R. § 3.159(c)(4).  The Veteran has not identified any pertinent evidence that remains outstanding.  VA's duty to assist is met. 

  Legal Criteria, Factual Background, and Analysis

The Board has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system).  Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record.  Rather, the Board's analysis will focus specifically on the evidence pertinent to the claim, and what it shows, or fails to show, with respect to the claim.  See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4.  38 U.S.C.A. § 1155.  The appropriate evaluation for hearing impairment is determined under the criteria in 38 C.F.R. §§ 4.85, 4.86.  
 
The Rating Schedule provides a table (Table VI) to determine for rating purposes a Roman numeral designation (I through XI) for hearing impairment, based on testing (by a state-licensed audiologist) including puretone thresholds and speech discrimination (Maryland CNC test).  See 38 C.F.R. § 4.85.  Where the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when there is an exceptional pattern of hearing impairment (as defined in 38 C.F.R. § 4.86) the rating may be based solely on puretone threshold testing.  See 38 C.F.R. § 4.85, Table VIA.  One exceptional pattern of hearing impairment occurs when the puretone thresholds in each of the four frequencies (1,000, 2,000, 3,000 and 4,000 Hertz) are 55 decibels or greater.  Another occurs when the puretone threshold at 1000 Hertz is 30 decibels or less, and the threshold at 2000 Hertz is 70 decibels or more.  See 38 C.F.R. § 4.86(a)(b).  Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear.
 
Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).
 
Where (as here) the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings."  See Fenderson v. West, 12 Vet. App. 119 (1999).  As will be discussed below, the current 0 percent rating assigned for the Veteran's bilateral hearing loss encompasses the greatest level of hearing impairment shown at any time during the appeal period; accordingly, "staged ratings" are not warranted.

The Veteran's claim seeking service connection was received on July 23, 2010.  He underwent two VA audiological evaluations suitable for rating purposes since the filing of the claim.  On October 2010 VA audiological evaluation, audiometry revealed that puretone thresholds (air conduction studies were certified as providing the better estimate of the Veteran's hearing acuity), in decibels, were:  




HERTZ



1000
2000
3000
4000
Average
RIGHT
30
25
40
35
33
LEFT
35
55
35
35
40

Speech audiometry (Maryland CNC list) revealed speech recognition ability of 96 percent in the right ear and of 84 percent in the left ear.  Mild, sensorineural hearing loss in both ears was diagnosed.  The examiner opined that the effect of the hearing loss on the Veteran's occupation and daily living would be difficulty understanding speech when there was a noisy background.

Under Table VI, the right ear puretone threshold average of 33 decibels and speech discrimination of 96 percent constitutes Level I hearing in that ear.  The left ear puretone threshold average of 40 decibels and speech discrimination of 84 percent constitute Level II hearing in that ear.  The audiometry does not reflect an exceptional pattern of hearing impairment in either ear.

Under Table VII, the Level I hearing acuity found in the right ear combined with the Level II hearing found in the left ear warrant a 0 percent rating under Code 6100.

The Veteran's April 2011 notice of disagreement argues that his hearing loss warrants at least a 10 percent rating.  In his April 2012 substantive appeal, he claimed that his hearing acuity was worsening, and stated he has had to attend VA hearing loss classes.

Accordingly, the VA arranged another audiological evaluation, which was conducted in June 2012.  This evaluation found that puretone thresholds, in decibels, were:





HERTZ



1000
2000
3000
4000
Average
RIGHT
25
20
30
25
25
LEFT
40
55
35
40
42

Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 94 percent in the left ear.  Sensorineural hearing loss in both ears was diagnosed.  The examiner noted that the Veteran reported difficulty hearing women and children, the television, voices on the telephone, difficulty hearing in the car, and difficulty hearing in the presence of background noise.  The examiner also noted that the Veteran indicated he could not hear a horn honk (which impacted on his work as a truck driver).  

Under Table VI, the right ear average puretone threshold of 25 decibels and speech discrimination of 98 percent constitute Level I hearing in that ear.  The left ear average puretone threshold of 42 decibels and speech discrimination of 94 percent constitute Level I hearing acuity in that ear.  The audiometry does not reflect an exceptional pattern of hearing impairment in either ear.

Under Table VII, the Level I hearing acuity found in the right ear combined with the Level I hearing found in the left ear warrant a 0 percent rating under Code 6100.

The Board finds that the June 2012 VA examination is adequate as the examiner elicited pertinent history, reviewed the record, and conducted a thorough examination with explanation of all findings, and commented on the expected impact of the hearing loss on the Veteran's everyday and occupational functioning. 

Regarding the Veteran's assertion that his hearing impairment is greater than that reflected by the 0 percent rating assigned, the Board acknowledges that he is competent to testify as to symptoms he experiences, including difficulty hearing.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  However, as a layperson, he is not competent to establish the level of his hearing disability by his own opinion.  As was noted above, the rating of hearing loss disability involves the mechanical application of the rating schedule to findings of controlled audiometry, which here results in a 0 percent rating.  See Lendenmann, 3 Vet. App. at 349.

The Board has considered whether referral for extraschedular consideration is indicated.  The evidentiary record does not show any manifestations of, or functional impairment due to, bilateral hearing loss not encompassed by the scheduler criteria.   The functional loss noted on the October 2010 and June 2012 VA audiological examinations (difficulty hearing in certain occupational situations and with certain daily activities) is fully contemplated by the scheduler criteria.  The Board finds that the scheduler criteria clearly encompass the symptoms and impairment shown and are not inadequate, and that referral for extraschedular consideration is not warranted.  See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008).  The Veteran has not presented any evidence of significant missed work due to the hearing loss.  There is also no evidence (or allegation) that his bilateral hearing loss has rendered/renders him unemployable; by his own account, he has been employed as a truck driver.  Hence, the matter of entitlement to a total disability rating based on individual unemployability is not raised by the record.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).

The preponderance of the evidence is against this claim; therefore, the appeal in the matter must be denied.


ORDER

A compensable rating for bilateral hearing loss is denied.


____________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs