Citation Nr: 1306105	
Decision Date: 02/21/13    Archive Date: 02/27/13

DOCKET NO.  09-18 753	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUE

Entitlement to an initial compensable evaluation for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

K. Hudson, Counsel




INTRODUCTION

The Veteran had verified active service from September 1951 to June 1953.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of April 2010, which granted service connection for bilateral hearing loss and assigned a noncompensable evaluation.

The United States Court of Appeals for Veterans Claims (Court) has held that a TDIU claim is part of an increased rating claim when such claim is raised by the Veteran or the record.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  In this case, there is no evidence, lay or medical, indicating that the Veteran is, or claims to be, unemployable due to service-connected bilateral hearing loss.  Accordingly, no discussion of the issue of entitlement to a TDIU is warranted.  

Please note that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

Since the effective date of service connection, the Veteran's bilateral hearing loss has manifested by hearing acuity no worse than Level IV in his right ear and Level II in his left ear, with no additional functional impairment or varying and distinct levels of severity.  


CONCLUSION OF LAW

The criteria for an initial compensable evaluation for bilateral hearing loss are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.85, 4.86, Diagnostic Code 6100 (2012).  

REASONS AND BASES FOR FINDING AND CONCLUSION

I.  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 of any information, and any 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).  

The Veteran was not provided with such notice in connection with his claim for a higher rating for bilateral hearing loss.  However, this is an initial rating case, and the Federal Circuit Court has held that, once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  Sutton v. Nicholson, 20 Vet. App. 419 (2006).  

Moreover, neither the Veteran nor his representative has identified any deficiency in notice which would compromise a fair adjudication of the claim.  Shinseki v. Sanders, 129 S. Ct. 1696, 1705-06 (2009) (in general, party claiming error bears burden of showing that prejudice resulted).  A finding of prejudice is warranted only if an error affects the essential fairness of the adjudication.  In this case, the statement of the case and supplemental statements of the case informed the Veteran of the relevant rating criteria, and how his own information, including medical examination findings, were applied to the rating criteria.  He can reasonably be expected to understand what is needed.  Medrano v. Nicholson, 21 Vet. App. 165 (2007).  He has been afforded a meaningful opportunity to participate effectively in the processing of his claim.  As such, no prejudicial notice error has been shown.  

VA also has a duty to assist the Veteran by making all reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012).  Service treatment records have been obtained.  Available VA treatment records have been obtained, and the Veteran has not identified any relevant private treatment.  VA examinations were provided in July 2009 and September 2010.  Those examinations describe the Veteran's disability in sufficient detail for the Board to make an informed decision.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  

Pursuant to the Board's August 2011 remand, sufficient attempts were made to obtain the report of a VA audiogram obtained in August 2004, such that further attempts would be futile.  Thus, there has been substantial compliance with the remand development order.  Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  

According to the June 2011 supplemental statement of the case, the Veteran failed to report for a VA audiology examination scheduled for February 19, 2011.  However, notice to the Veteran does not confirm that this examination was to evaluate his hearing loss, and he was provided with an examination on that date in connection with another claim.  Whether or not he failed to report for an audiology examination, the Board will decide the claim based on the evidence of record.  If he failed to report, good cause has not been shown, and there is no evidence, including statements from the Veteran, indicating that there has been a material change in the bilateral hearing loss since the last examination in September 2010.  38 C.F.R. § 3.327(a); Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007).

Thus, all necessary notice and development has been accomplished, and appellate review may proceed.  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 the appellant 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

II.  Initial Compensable Rating-Bilateral Hearing Loss 

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A § 1155; 38 C.F.R. Part 4.  Although the disability must be considered in the context of the whole recorded history, including service medical records, the present level of disability is of primary concern in determining the current rating to be assigned.  38 C.F.R. § 4.2 (2007); Francisco v. Brown, 7 Vet. App. 55 (1994); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  If the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending, staged ratings may be assigned.  Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2.  

Organic impairment of hearing acuity is rated by using audiological test results, obtained by a state-licensed audiologist, and the basic rating method involves using both the results of controlled speech discrimination tests (Maryland CNC) and the average decibel threshold level as measured by pure tone audiometry tests at the frequencies of 1000, 2000, 3000, and 4000 Hertz.  38 C.F.R. § 4.85(a). Tests are conducted without hearing aids. Id. The rating schedule establishes 11 auditory acuity levels ranging from numeric levels I through XI. 38 C.F.R. § 4.85. 

In July 2004, the Veteran reported dry, itchy ears and stated that he used Q-tips several times a day.  On examination, he had dry flaky external canals with some cerumen impacted on the right tympanic membrane.  He was referred to the ear irrigation clinic and was advised to stop using Q-tips.  Later that month, he was seen in the audiology clinic, at which time excessive cerumen was observed and removed.  Additional VA treatment records show that, in July 2004, the Veteran was seen for cerumen impaction removal.  As noted above, the audiometric findings of an evaluation conducted in August 2004 are not available.  According to a summary of the findings, pure tone audiometry revealed a moderate to severe degree high frequency sensorineural hearing loss bilaterally.  Tympanograms were within normal limits.  Word recognition scores were 96 percent in each ear.  

A handwritten notation on page 3 of a March 8, 2005 VA report reflects that a nurse found that the Veteran's right ear drum was chronically perforated.  VA treatment records show that, in April 2005, the Veteran was seen in an ENT clinic complaining of itchy ears as well as hearing loss.  He stated that he felt like his ears were clogged up all the time.  He stated that someone tried to irrigate his ears but that this caused quite a bit of trouble with ear pain and even further fullness in his ears for a couple of weeks.  He said that now his ears were constantly itchy and that he felt like his hearing was not as good.  On examination, his external auditory canals appeared to be completely impacted with cerumen distally, but there was no complete obstruction of the tympanic membrane.  This was carefully removed.  On examination, both tympanic membranes were non-erythematous and non-bulging.  There was no evidence of effusion.  The Veteran noticed a significant improvement in his hearing immediately after disimpaction.  The assessment was hearing loss due to cerumen impaction as well as the ear pruritus.  (He appeared to  have significant cerumen impaction with a low-grade chronic otitis externa with disimpacted canals under the microscope.)  He was to be started on a seven-day course of medication, followed by the Veteran using the ear irrigation instructions for ear hygiene.  

On a July 2009 VA authorized audiological evaluation, pure tone thresholds were:




HERTZ



1000
2000
3000
4000
Average
RIGHT
20
40
80
70
52.5
LEFT
15
20
35
50
30

The Maryland CNC word list speech recognition score was 78% in the right ear and 86% in the left ear. The examiner concluded that the Veteran had bilateral sensorineural hearing loss, worse on the right, with fair word recognition in the right ear and good word recognition in the left ear. The right ear hearing loss was mild to severe, while in the left ear the degree of loss was mild to moderate. The examiner found no significant effects on occupation or usual daily activities.  

On a VA authorized audiological evaluation in September 2010, the Veteran reported no noise exposure, ear disease, or trauma since the last evaluation.  Pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
25
45
80
80
57.5
LEFT
20
25
40
60
36.25
The Maryland CNC word list speech recognition score was 90 percent in the right ear and 92 percent in the left ear.  The examiner stated that the results showed mild to severe sensorineural hearing loss in the right ear and mild to moderately severe sensorineural hearing gloss in the left ear, with good word recognition bilaterally.  There were no significant effects on occupation.  

The assignment of a disability rating for hearing impairment is "derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered."  Lendenmann v. Principi, 3 Vet.App. 345, 349 (1993).  Specifically, organic impairment of hearing acuity is rated by using audiological test results, obtained by a state-licensed audiologist, and the basic rating method involves using both the results of controlled speech discrimination tests (Maryland CNC) and the average decibel threshold level as measured by pure tone audiometry tests at the frequencies of 1000, 2000, 3000, and 4000 Hertz.  38 C.F.R. § 4.85(a).  Tests are conducted without hearing aids.  Id.  The rating schedule establishes eleven auditory acuity levels ranging from numeric level I through numeric level XI, obtained by applying the findings to Table VI or VIa.  38 C.F.R. §§ 4.85, 4.86.  The numeric designations for both ears are then applied to Table VII to derive the percentage evaluation, under diagnostic code 6100.  

Here, the test in 2009 resulted in a numeric designation of IV in the right ear and II in the left ear.  The 2010 test findings in the right ear correspond to a numeric designation of III in the right ear, and I in the left ear.  Applied to Table VII, each of these results warrants a 0 (zero) percent rating.  38 C.F.R. § 4.85, Code 6100.  Thus, despite some variation in the findings on these two tests, a noncompensable evaluation is warranted.  

Where circumstances warrant, there is also a method for rating exceptional patterns of hearing impairment, under Table VIa.  See 38 C.F.R. § 4.86.  When applicable based on specified pure tone threshold findings, all four frequencies must have pure tone threshold of 55 decibels or more, or the threshold at 1000 hertz must be 30 decibels or less, while the threshold at 2000 decibels must be 70 decibels or more.  38 C.F.R. § 4.86.  In other situations, where the VA examiner certifies that the use of speech discrimination tests is not appropriate, because of situations such as inconsistent speech discrimination tests or language difficulties, Table VIa may be used to evaluate the hearing loss, based solely on pure tone thresholds.  38 C.F.R. §§ 4.85(c), 4.86.  However, there has been no such certification, and the pure tone thresholds do not meet the criteria for rating based on exceptional patterns of hearing impairment.  Moreover, applying the puretone values to Table VIa would still result in a noncompensable evaluation.

In addition, with respect to the audiology examination, the audiologist must describe the functional effects caused by a hearing disability in the final report.  Martinak v. Nicholson, 21 Vet. App. 447, 455-456 (2007).  Both examiners on the VA examinations noted that the Veteran's hearing loss would not have significant effects on occupation.  While the Veteran complained of a feeling of fullness and itchiness and hearing loss, after the excess cerumen was removed in April 2005, he noted an immediate, significant improvement in hearing, and records do not show subsequent problems with cerumen impaction.  Although the audiogram from August 2004 is not available, his speech recognition scores at that time were 96 percent bilaterally, which is better than demonstrated on the subsequent compensation examinations.  

Moreover, any problems with cerumen impaction, which was noted in July 2004 and April 2005, a "chronically" perforated eardrum noted in March 2005 (which was nevertheless not present when the cerumen was suctioned out less than a month later), or otitis externa noted in April 2005, are not part of the service-connected disability picture, which is limited to hearing loss and tinnitus (not at issue in this decision).  The Veteran has not reported functional impairment due to hearing loss.  Given these factors, the Board finds that the weight of the evidence establishes that functional impairment warranting a compensable evaluation has not been shown.  

In considering whether referral for extraschedular consideration is appropriate, the Court has set forth a three-step analysis which provides additional guidance in determining whether referral for extraschedular consideration is appropriate.  Thun v. Peake, 22 Vet. App. 111 (2008).  The initial step is a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Id.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  

The rating schedule provides for various compensable ratings for different levels of hearing impairment, but the Veteran's hearing loss does not meet the criteria.  Hearing loss is evaluated based on both pure tone threshold loss and speech recognition.  Moreover, the schedule provides for ratings for exceptional patterns of hearing impairment deemed not to be adequately covered by the rating schedule.  Thus, the Board finds that the schedular criteria are adequate and that therefore it is not necessary to proceed to the second step-a discussion of whether the exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms," such as "marked interference with employment" and "frequent periods of hospitalization."  It is worth noting, however, that an exceptional or unusual disability picture has not been indicated.  Aside from his problems with cerumen impaction noted in July 2004 and April 2005, and a "chronically" perforated eardrum noted in March 2005, which was nevertheless not present when the cerumen was suctioned out less than a month later in April 2005, treatment for hearing loss-related complaints has not been shown.  Moreover, service connection is not in effect for those conditions.  For these reasons, referral for extraschedular consideration is not appropriate in this case.  

Additionally, the evidence does not show that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  Accordingly, a question as to which of two evaluations to apply has not been presented, and the disability picture does not more nearly approximate the criteria required for a compensable rating.  38 C.F.R. § 4.7 (2010).  In reaching this determination, the Board is mindful that all reasonable doubt is to be resolved in the Veteran's favor.  The preponderance of the evidence, however, is against the claim, and the claim must be denied.  38 U.S.C. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  
ORDER

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



____________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs