Citation Nr: 1306034	
Decision Date: 02/21/13    Archive Date: 02/27/13

DOCKET NO.  12-22 350	)	DATE
	)
	)

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


THE ISSUE

Entitlement to a compensable initial disability evaluation for service-connected bilateral hearing loss.  


ATTORNEY FOR THE BOARD

M. Hudson, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1969 to December 1973. 
	
This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (hereinafter VA) Regional Office in Houston, Texas (hereinafter RO) which initially evaluated the Veteran's service-connected bilateral hearing loss at zero percent.
FINDING OF FACT

Throughout the rating period on appeal, the Veteran's bilateral hearing loss was manifested by Level II hearing impairment in both ears.


CONCLUSION OF LAW

The criteria for an initial compensable evaluation for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. § 3.102, 3.159, 3.321, 4.1, 4.85, 4.86, Diagnostic Code 6100 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION 

I. Bilateral Hearing Loss

In a June 2008 rating decision, the RO denied service connection for bilateral hearing loss.  In December 2010, the Veteran again submitted a claim for bilateral hearing loss.  In a September 2011 rating decision, the RO found no new and material evidence had been submitted and confirmed and continued the prior denial of service connection for bilateral hearing loss.  The Veteran appealed the decision.  In a March 2012 rating decision, the RO granted service connection for bilateral hearing loss and assigned a noncompensable disability evaluation with an effective date of December 27, 2010.  

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (rating schedule), which is based upon the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  See 38 C.F.R. § 4.1.

In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

In cases such as this, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58   (1994).  However, where, as here, the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged ratings" is required.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).  As discussed below, staged ratings are not necessary in this case.

In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed.  Lendenmann v. Principi, 3 Vet. App. 345 (1992). 

An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test.  38 C.F.R. § 4.85.  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 1000, 2000, 3000 and 4000 cycles per second, with 11 auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness.  Id. 

In addition, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the adjudicator must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in the higher numeral. See 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 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 Roman numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(b). 

In September 2007, the Veteran underwent a private audiology examination.  However, the examination did not include a Maryland CNC controlled speech discrimination test.  As a result, the September 2007 examination is not valid for VA rating purposes.  See 38 C.F.R. § 4.85.  As a result of the examination, the Veteran was stated to be a candidate for a trial with amplification.  The Veteran's medical records show the Veteran was approved to receive a hearing aid for his left ear in October 2007.

A VA audiology consultation was conducted in February 2012 at the Houston VA Medical Center (VAMC).  Testing revealed the following puretone thresholds, in decibels:





HERTZ



500
1000
2000
3000
4000
RIGHT
35
45
70
70
75
LEFT
40
45
55
75
100

Based upon the above findings, the Veteran's puretone average in his right ear was 65.  His puretone average in the left ear was 69.  Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 96 percent in the left ear.  The Veteran was diagnosed with sensorineural hearing loss (in the frequency range of 500-4000Hz), bilaterally.  The examiner opined that the Veteran's hearing loss will make it difficult for him to hear speech in competing noise and he will have difficulty hearing normally loud conversation unless he is using his hearing aid and watching the speaker.  However, the examiner also found that the hearing loss will not interfere with the Veteran's ability to obtain or maintain gainful employment.

From Table VI of 38 C.F.R. § 4.85, Roman Numeral II is derived for both ears.  These findings are determined by intersecting the percent of speech discrimination row with the puretone threshold average column.  Either ear can be used as the poorer ear for 38 C.F.R. § 4.85's Table VII as they both equate to the same Roman Numeral.  A zero percent evaluation is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row II, the better ear, with column II, the poorer ear. 

The findings of the aforementioned VA examination, as applied to the rating criteria for hearing impairment, show that the criteria for a compensable evaluation for bilateral hearing loss have not been met. 

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 extra-schedular 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 extra-schedular 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 rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing.  The symptoms associated with the Veteran's bilateral hearing loss (i.e., difficulty hearing and understanding speech) are contemplated by the rating criteria and the medical evidence fails to show anything unique or unusual about the Veteran's bilateral hearing loss that would render the schedular criteria inadequate.  The Veteran's main complaint is reduced hearing acuity, which is precisely what is contemplated in the rating assigned.  As the available schedular criteria for this service-connected disability are adequate, referral for consideration of an extraschedular rating is not warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  

The Board is sympathetic to the Veteran's complaints related to his hearing loss, but finds that there is no schedular basis for granting a compensable rating.  The Board finds the preponderance of the evidence is against the Veteran's claim for an increased, compensable evaluation for bilateral hearing loss.  Consequently, the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 55.

II. Total Rating for Compensation Based on Individual Unemployability (TDIU)
	
The Court has also held that a request for a total disability rating due to individual employability resulting from a service-connected disability (TDIU), whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Entitlement to TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability.  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  However, TDIU is not raised in an increased rating claim unless the Roberson requirements are met.  Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009).  

In this case, the Roberson requirements are not met.  While the Veteran states in his November 2012 statement that he has been turned down for jobs over the years because of his hearing, he has not alleged overall unemployability.  See Norris v. West, 12 Vet. App. 413, 418 (1999) (If a veteran presents evidence that they are unable to secure a substantially gainful occupation as a result of a service-connected disability, they may be entitled to a TDIU rating); see also Colayong v. West, 12 Vet. App. 524 (1999); Comer v. Peake, 552 F.3d 1362 (2009).  The Veteran stated on his November 2007 claim for benefits that his disability began in March 1994.  However, the Veteran also stated he worked full-time from 1997 to 2004 as an oiler in Houston, Texas and that no days of work were lost due to his disability.  While the Veteran is not currently working, he has been incarcerated since approximately 2007.  The February 2012 VA examination specifically states that the Veteran's hearing loss will not interfere with his ability to obtain or maintain gainful employment.  Further, the Veteran is not in receipt of Social Security disability benefits.  Therefore, as the Veteran has not submitted evidence of overall unemployability, no further consideration of TDIU is necessary.
III. VA's Duties to Notify and Assist

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  See also Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010).  

This appeal arises from disagreement with the initial evaluation following the grant of service connection.  The courts have held that once service connection is granted the claim is substantiated, additional VCAA 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).

As for the duty to assist, the Veteran's service treatment records, VA medical treatment records, prison medical records and private medical records have been obtained.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration.  Id.  The Veteran has not identified any additional relevant medical records that have not been obtained and associated with his file.  

One VA examination has been secured in connection with the current claim for an increased initial rating.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 310-12 (2007).  The VA examination obtained in this case is sufficient, as it provides explanations for the opinions stated as well as the medical information necessary to apply the appropriate rating criteria.  VA's duty to assist with respect to obtaining a VA examination has been met.  38 C.F.R. § 3.159(c)(4).  

VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time.
ORDER

Entitlement to an initial compensable evaluation for bilateral hearing loss is denied.





____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs