Citation Nr: 1304290	
Decision Date: 02/06/13    Archive Date: 02/19/13

DOCKET NO.  08-31 141	)	DATE
	)
	)

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


THE ISSUE

Entitlement to a compensable disability rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

M. N. Hyland, Senior Counsel


INTRODUCTION

The Veteran served on active duty from July 1978 to September 1982.

This appeal to the Board of Veterans' Appeals (Board) is from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

The Veteran and his wife testified at a Board hearing at the RO in January 2012 before the undersigned.  A transcript of the hearing is associated with the claims file.  This matter was previously before the Board and was remanded in May 2012.


FINDING OF FACT

The Veteran's bilateral hearing loss manifests Level I hearing acuity in the right ear and Level I (using Table VI) or Level IV (using Table VIa) hearing acuity in the left 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 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (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 (West 2002) redefined VA's duties to notify and assist the Veteran in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a).

The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim, including what subset of the necessary information or evidence, if any, the claimant is to provide and what subset of the necessary information or evidence VA will attempt to obtain.  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule).

In this case, in a December 2007 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate the claim for an increased rating for bilateral hearing loss, as well as what information and evidence must be submitted by the Veteran, what information and evidence will be obtained by VA, and the need for the Veteran to advise VA of or submit any further evidence in his possession that pertains to the claim.  The same letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations.  This notice was timely as the issue of entitlement to an increased rating for bilateral hearing loss was not initially adjudicated until February 2008.  

The record also reflects that VA has complied with the duty to assist the Veteran in the development of his claim.  Specifically, VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran.  The information and evidence that have been associated with the claims file include: the Veteran's service treatment records (STRs); VA treatment records; lay statements from the Veteran and his parents, VA examination reports; and hearing testimony.  

The Veteran was last afforded a VA audiological examination in June 2012 regarding his service-connected bilateral hearing loss.  The examination report reflects that thorough testing of the Veteran's bilateral hearing acuity was conducted, and the examiner addressed whether the Veteran's hearing loss impacted the ordinary conditions of daily life, including the ability to work.  As such, the Board finds the examination report is adequate for rating purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim).

In summary, the Board finds that VA complied with its duties to notify and assist and that the Veteran will not be prejudiced by the Board adjudicating his claim on the merits at this time.

Increased Rating Claim

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) 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.  Separate diagnostic codes identify the various disabilities.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other general policy considerations are: interpreting 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; resolving 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 evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 

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 1,000, 2,000, 3,000, and 4,000 Hertz.  To evaluate the degree of disability from bilateral service-connected defective hearing, the Rating Schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness.  38 C.F.R. §§ 4.85 , 4.86, Diagnostic Code 6100.  The evaluation of hearing impairment applies a rather structured formula that is essentially a mechanical application of the rating schedule to numeric designations after audiology evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). 

Under 38 C.F.R. § 4.86, 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 Level 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).  Further, when the average puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Level 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 Level.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(b). 

Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c). 

In addition, a VA examiner has the duty to fully describe the functional effects caused by a service-connected disability.  See Martinak v. Nicholson, 21 Vet. App. 447, 454  (2007). 

The relevant evidence of record includes January 2008 VA examination report.  Audiometric testing indicated that the Veteran exhibited puretone thresholds, in decibels, as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
N/A
20
20
50
45
LEFT
N/A
15
65
60
55

The average pure tone threshold in the Veteran's right ear was 34 decibels and the speech recognition ability, using the Maryland CNC Test, was 94 percent.  The average pure tone threshold in the Veteran's left ear was 49 decibels and the speech recognition ability, using the Maryland CNC Test, was recorded at 96 and 92 percent.  The examiner indicated that the Veteran had mild to moderate "noise-notch" sensorineural hearing loss in the right ear and mild to moderately-severe "noise-notch" sensorineural hearing loss in the left ear.  

A June 2012 VA examination report reflects that audiometric testing indicated that the Veteran exhibited puretone thresholds, in decibels, as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
N/A
20
25
55
50
LEFT
N/A
25
70
65
60

The average pure tone threshold in the Veteran's right ear was 38 decibels and the speech recognition ability, using the Maryland CNC Test, was 96 percent.  The average pure tone threshold in the Veteran's left ear was 55 decibels and the speech recognition ability, using the Maryland CNC Test, was recorded at 94 percent.  The examiner indicated that the Veteran had sensorineural hearing loss in both ears in the frequency range of 500-4000 Hz.  The examiner stated that the Veteran's hearing loss did not impact ordinary conditions of daily life, including the ability to work.  

At the January 2012 Board hearing, the Veteran indicated that his hearing loss affected his daily life through the need to turn up the television to a high volume, the inability to hear people speaking when there is a radio playing, and the inability to hear well at his job when he is not wearing his hearing aids.

In January 2008, the Veteran exhibited Level I hearing acuity in the right ear and Level I hearing acuity in the left ear according to Table VI.  In June 2012, he exhibited Level I hearing acuity in the right ear and Level I hearing acuity in the left ear according to Table VI.  However, in June 2012, the Veteran exhibited an "exceptional pattern of hearing loss" as defined by 38 C.F.R. § 4.86 as his puretone threshold was less than 30 decibels at 1000 Hertz and 70 decibels at 2000 Hertz.  As such, the Board must also determine the appropriate Roman numeral designation for hearing impairment from Table VIa.  Using Table VIa, the June 2012 test results show Level IV hearing acuity in the left ear.  In any event (using either the 2008 or 2012 test results or using Table VI or VIa) the Veteran's hearing impairment results in a noncompensable evaluation according to Table VII.  At no time during the appeal period is there evidence of higher pure tone thresholds that would result in a compensable disability rating for bilateral hearing loss.  Accordingly, staged ratings are not in order and the assigned rating is appropriate for the entire period of the Veteran's appeal.  See Fenderson, supra. 



Extraschedular Rating 

Consideration has also been given to whether the schedular evaluations are inadequate, thus requiring that the RO refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities."  38 C.F.R. § 3.321(b)(1); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record).  In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Thun, 22 Vet. App. at 115-16.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating.  Otherwise, the schedular evaluation is adequate, and referral is not required.  38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116.

The schedular evaluations in this case are not inadequate.  Compensable evaluations are provided for certain manifestations of the service-connected bilateral hearing loss disability (such as higher puretone thresholds), but the evidence reflects that those manifestations are not present in this case.  There is no evidence that the hearing loss causes exceptional or unusual functional effects.  The Veteran testified at his January 2012 Board hearing that his hearing loss made it difficult to hear in certain situations, such as when a radio is playing, and indicated that he had to wear his hearing aids to hear people talk to him at work, but he did not indicate that his hearing loss caused exceptional or unusual functional effects beyond the hearing loss impairment manifested through puretone thresholds that is directly contemplated by the schedular rating criteria.  As the Board finds that the Veteran's disability picture is contemplated by the rating schedule, the inquiry ends and the Board need not consider whether the disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization.  Accordingly, referral for consideration of an extra-schedular rating is not warranted.

Total Disability Rating Based on Individual Unemployability (TDIU)

The Board has also considered the issue of a total disability rating based on individual unemployability (TDIU).  See 38 C.F.R. §§ 3.340, 4.16.  A request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or as part of a claim for increased compensation.  Rice v. Shinseki, 22 Vet. App. 447, 453 (2009).  If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel of that claim for an increased rating is the issue of whether a total rating based on individual unemployability as a result of that disability is warranted.  Id. at 455.  Here, the Veteran has not stated, nor does the record show, that the Veteran is unemployable due to his bilateral hearing loss.  Thus, the Board will not consider the issue of entitlement to TDIU.


ORDER

A compensable evaluation for bilateral hearing loss is denied. 



____________________________________________
TANYA A. SMITH
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs