Citation Nr: 1306801	
Decision Date: 02/27/13    Archive Date: 03/01/13

DOCKET NO.  09-03 966	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an initial compensable rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

L. A. Rein, Counsel


INTRODUCTION

The Veteran had active service from April 1953 to April 1955. 

This matter comes before the Board of Veterans' Appeals  (Board) on appeal from an April 2008 rating decision of the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA), which, in part, granted service connection and assigned an initial noncompensable rating for bilateral hearing loss.

In August 2011, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. 

This matter was remanded in January 2012 and in January 2013 for additional development.  

Because the Veteran has disagreed with the initial rating assigned following the grant of service connection for his bilateral hearing loss, the Board has characterized the issue on appeal in light of Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). 

Please note 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).


FINDINGS OF FACT

Since the August 9, 2007 effective date for the grant of service connection, the Veteran had, at worst, Level II hearing in the right ear and level III hearing in the left ear, meeting the criteria for not more than an initial noncompensable (0 percent) disability rating. 



CONCLUSION OF LAW

The criteria for an initial compensable rating for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159 , 3.321, 4.1, 4.7, 4.85, Diagnostic Code 6100, 4.86 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to notify and assist

Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim.  The notice must:  (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  If VA does not provide adequate notice of any element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009). 

The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice.  The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Specifically, the Veteran was notified in letters dated in January 2008 and in February 2012.

The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim.  Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim).  

Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent January 2013 supplemental statement of the case.  Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless).  

The Board also finds that the duty to assist requirements have been fulfilled.  All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained.  The appellant has not referred to any additional, unobtained, relevant, available evidence.  VA has obtained examinations with respect to the claim on appeal.  Thus, the Board finds that VA has satisfied the duty to assist provisions of law.  No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).



II.  Analysis

Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings applies under a particular Diagnostic Code (DC), the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 C.F.R. § 4.3 (2012). 

The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required.  See Fenderson, 12 Vet. App. at 126; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). 

The RO has assigned an initial noncompensable disability rating for the Veteran's bilateral hearing loss in accordance with the criteria set forth under 38 C.F.R. § 4.85, Diagnostic Code 6100 (2012).

Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric evaluations.  Ratings for hearing impairment 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 cycles per second.  To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness.  38 C.F.R. § 4.85, Diagnostic Code 6100 (2012).

Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII.  See 38 C.F.R. § 4.85.

Exceptional patterns of hearing impairment are evaluated under 38 C.F.R. § 4.86  (2012).

(a) 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.

(b) 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.

As noted above, under VA rating criteria, an adequate evaluation of impairment of hearing acuity rests upon the results of controlled speech discrimination tests, together with tests of the average hearing threshold levels at certain specified frequencies.  See 38 C.F.R. § 4.85, Diagnostic Code 6100 (2012).

Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992).

A November 2003 VA audiological consultation revealed bilateral high frequency sensorineural hearing loss.  On audiometric testing, pure tone thresholds, in decibels, were reported as follows: 





HERTZ



1000
2000
3000
4000
AVG
RIGHT
15
45
45
75
45
LEFT
15
30
40
50
33.75

Speech discrimination scores on the Maryland CNC word list were 88 percent in the right ear and 92 percent in the left ear.  

An April 2008 VA audiological evaluation revealed bilateral mixed hypacusis hearing loss, right greater than left ear.  On audiometric testing, pure tone thresholds, in decibels, were reported as follows:
 



HERTZ



1000
2000
3000
4000
AVG
RIGHT
20
50
55
70
48.75
LEFT
10
       30 
40
50
32.50

Speech discrimination scores on the Maryland CNC word list were 100 percent in the right ear and 98 percent in the left ear.  

A March 2009 VA audiological evaluation revealed bilateral high frequency sensorineural hearing loss.  On audiometric testing, pure tone thresholds, in decibels, were reported as follows: 




HERTZ



1000
2000
3000
4000
AVG
RIGHT
20
50
55
70
48.75
LEFT
10
35
40
55
35

Speech discrimination scores on the Maryland CNC word list were 96 percent in the right ear and 94 percent in the left ear.  

A February 2012 VA audiological evaluation revealed bilateral high frequency sensorineural hearing loss.  On audiometric testing, pure tone thresholds, in decibels, were reported as follows:
 



HERTZ



1000
2000
3000
4000
AVG
RIGHT
25
50
60
85
55
LEFT
20
45
55
65
46.25

Speech discrimination scores on the Maryland CNC word list were 84 percent in the right ear and 80 percent in the left ear.  

The February 2012 VA audiologist noted that the Veteran was not employed.  The impact of the Veteran's hearing loss was reported per the Veteran's statements to the examiner that he had difficulties hearing the television, in conversations in which he has to concentrate on the speaker and speech in groups.  The Veteran wears hearing aids and they work best in quiet environment.  The impact on occupational activities was noted as hearing difficulty.  The examiner responded in the negative as to any effects on usual daily activities.   The VA examiner opined that it was at least as likely as not that the Veteran's current hearing loss would give him some hearing difficulties in employable situations; however, it would not make him unemployable.  Most occupations do not set physical requirements for hearing.  Some occupations such as law enforcement, firefighting and pilots have hearing loss requirements.  

In a September 2012 letter, the Veteran asserted that with or without hearing aids, he cannot communicate actively and effectively in most circumstances.  He noted that the benefits of the hearing aids is more than offset by the amplified peripheral and back ground noises, making them virtually ineffective in most circumstances.  He contended that the environment in which he was provided audiological testing, in a quiet and soundproof testing room, did not take into consideration the impact of peripheral noises that he constantly experiences in everyday life.  

Applying the method for evaluating hearing loss to the results of the Veteran's audiological evaluation, the November 2003 audiometric evaluation reveals Level II hearing acuity in the right ear, and Level I hearing acuity in the left ear, the April 2008 and March 2009 audiometric evaluations each reveal Level I hearing acuity in the right ear and in the left ear, and the February 2012 audiometric evaluation reveals Level II hearing acuity in the right ear, and Level III hearing acuity in the left ear, based on application of each of the reported findings to Table VI. Application of the findings from each of the four audiometric evaluations to Table VII corresponds to a 0 percent rating under 38 C.F.R. § 4.85, Diagnostic Code 6100.  The Board points out that none of the pure tone thresholds recorded in any of the VA examinations reflect exceptional hearing impairment, and thus 38 C.F.R. §§ 4.86(a) and 4.86(b) are not for application.

In Martinak v. Nicholson, 21 Vet. App. 447, 453-54 (2007), the United States Court of Appeals for Veterans Claims (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, "unlike 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.  

In this regard, the Board observes that the March 2009 VA examination report shows that the VA examiner noted significant effects on occupation and that the impact on occupational activities was that the Veteran had hearing difficulty.  There were no effects on usual daily activities.  During the February 2012 VA examination, the examiner considered the Veteran's report of difficulties hearing the television, conversational speech in which he has to concentrate on the speaker and speech in groups to opine that while the Veteran's current hearing loss would give him some hearing difficulties, it would not make him unemployable.  The examiner indicated that such occupations that did not set physical requirements for hearing would be available to the Veteran despite his hearing loss disability.  As opposed to those occupations that had hearing requirements, i.e. he would be precluded from employment in law enforcement, firefighting, and as a pilot.  In addition, the examiner found that the Veteran's hearing loss disability had no effects on his usual daily activities.  As the Board finds that the record contains the type of evidence regarding functional impact described by the Court, it can proceed, as follows, to consider extra-schedular consideration.  Thus, there is no violation of the holding in Martinak.

The Board has also considered the statements made by the Veteran during his Board hearing as well as written statements associated with the record in which he asserted that his hearing loss disability with or without hearing aids, results in him not being able to communicate actively and effectively in most circumstances.   In this regard, the Court has repeatedly held that a veteran is competent to describe symptoms of which he or she has first-hand knowledge.  See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  As the Board finds that hearing loss and its symptomatology are something that the Veteran, as a layperson, is competent to describe, his statements carry probative weight.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995).

However, the Board is bound in its decisions by VA regulations.  38 U.S.C.A. 
§ 7104(c).  The supplementary information included with the publication of the revisions to the Schedule for rating hearing loss (64 FR 25206 (May 11, 1999)) discusses VA's choice of methodology employed for determining impairment of auditory acuity.  In short, the use of the Maryland CNC speech discrimination test and the puretone threshold average determined by an audiometry test was established by a regulation for evaluating hearing loss published in the Federal Register on November 18, 1987 (52 FR 44117).  That regulation changed the method of evaluating hearing loss based on a VA study on hearing loss testing methods and assistive hearing devices that Congress had requested in 1984.  The results of this study were published by VA in a January 1986 report entitled "Report on Hearing Loss Study."  This long-standing methodology was properly administered in this case, and there is no evidence that VA improperly interpreted the testing results.  The evaluations derived from the Schedule are intended to make proper allowance for improvement by hearing aids.  VHA consultants have "indicated that it is well accepted in the audiological literature that the better the speech discrimination score, the better the overall result with hearing aids."  See 64 FR 25200, 25204 (May 11, 1999).

The above findings when compared with the criteria for a higher rating for bilateral hearing loss reflect that the Veteran is properly receiving an initial noncompensable rating based on findings from the November 2003, April 2008, March 2009, and February 2012 audiometric testing results, which revealed that the combination of the pure tone threshold averages and speech recognition tests warranted a 0 percent rating under the applicable tables.  The Board in no way discounts the difficulties that the Veteran experiences as a result of his bilateral hearing loss, and is aware that his hearing impairment has worsened over the years.  However, it must be emphasized, as indicated above, that disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric evaluations; the Board has no discretion in the matter.  See Lendenmann, 3 Vet. App. at 349.  In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

The Veteran also contends, essentially, that the VA audiological examination process itself is inadequate because it takes place in a sound-proof booth, so is not equivalent to or representative of the sounds and noises experienced under the ordinary conditions of life.  See, e.g., 38 C.F.R. § 4.10 (2012).  In a sense, the contention is that the Veteran's service-connected bilateral hearing loss is more disabling than the audiometric testing results and speech discrimination scores reveal because he has to endure background noise and other impediments in his daily life that are not encapsulated by the hearing room environment that occurs when his hearing is tested for VA compensation purposes.

The Board has considered the Veteran's assertions that the VA audio examinations testing his hearing in a soundproof booth was not representative of his level of disability.  However, the use of the controlled Maryland CNC speech discrimination test and the puretone threshold average determined by an audiometry test was established by regulation and published in the Federal Register on November 18, 1987.  See 52 Fed. Reg. 44,117.  Moreover, in Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the Court held that audiometric testing in a sound controlled room is an adequate testing ground for rating purposes.  The Board further notes that the VA examination reports included information concerning how the Veteran's hearing loss affects his daily functioning.  See Martinak, 21 Vet. App. 455-56. Thus, although the Veteran generally argued the testing may have misrepresented his hearing loss, such argument does not indicate that the examiner failed to properly discharge his duties.  See United States v. Armstrong, 517 U.S. 456, 464, 116 S. Ct. 1480, 134 L.Ed.2d 687 (1996) (" '[I]n the absence of clear evidence to the contrary, courts presume that [Government agents] have properly discharged their official duties.' ").  There is no indication that the results of any examinations are invalid, and the examinations are adequate for rating purposes. 

In addition, the Board notes that there is no evidence of an exceptional or unusual disability picture with related factors, such as marked interference with employment or frequent periods of hospitalization, so as to warrant referral of the case to appropriate VA officials for consideration of an extra schedular rating under 38 C.F.R. § 3.321(b)(1) (2012); see Shipwash v. Brown, 8 Vet. App. 218 (1995).  Here, the record does not reflect that the Veteran was hospitalized for his service-connected bilateral hearing loss.  There is no objective evidence revealing that his condition caused marked interference with employment, e.g., employers' statements or sick leave records, beyond that already contemplated by the schedular rating criteria.  In this case, the rating criteria reasonably describe the Veteran 's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence; thus, his disability picture for his bilateral hearing loss is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate.  See Thun v. Peake, 22 Vet. App. 111   (2008) (the threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the schedular evaluation is inadequate).

Under these circumstances, the Board must conclude that the criteria for an initial compensable rating for bilateral hearing loss is not warranted at any point since the effective date of the grant of service connection.  As such, there is no basis for staged rating pursuant to Fenderson.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim for an initial compensable rating that doctrine is not applicable.  See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

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



____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs