Citation Nr: 1307045	
Decision Date: 03/01/13    Archive Date: 03/11/13

DOCKET NO.  11-15 286	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to an initial disability rating in excess of 10 percent for service-connected left ear hearing loss.


ATTORNEY FOR THE BOARD

M. Hudson, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1966 to August 1968. 
	
This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (hereinafter VA) Regional Office in Detroit, Michigan (hereinafter RO) which initially evaluated the Veteran's service-connected left ear hearing loss at 10 percent.
FINDING OF FACT

Throughout the rating period on appeal, the Veteran's left ear hearing loss was manifested by Level X hearing impairment. 


CONCLUSION OF LAW

The criteria for an initial evaluation for hearing loss in the left ear in excess of 10 percent 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. 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 and VA medical treatment records have been obtained.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  The Veteran provided all relevant private medical treatment records.  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.

II. Left Ear Hearing Loss
	
In a March 2010 rating decision, the RO denied service connection for hearing loss in the right ear but granted service connection for hearing loss in the left ear and assigned a 10 percent disability evaluation with an effective date of September 16, 2009.

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 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). 

A VA audiology examination was conducted in January 2010 at the Battle Creek VA Medical Center (VAMC).  Testing revealed the following puretone thresholds, in decibels:




HERTZ




1000
2000
3000
4000
RIGHT
10
10
15
25
LEFT
105+
95
95
95

Based upon the above findings, the Veteran's puretone average in his right ear was 15 dB.  His puretone average in the left ear was 98 dB.  Speech audiometry revealed speech recognition ability of 94 percent in the right ear.  The examiner found that the Veteran's word recognition speech could not be tested in the left ear as the Veteran could not respond to the task due to the severity of his left ear hearing loss.  The Veteran was diagnosed with normal hearing in the right ear but profound sensorineural hearing loss in the left ear.  The examiner noted that the Veteran found understanding others to be of greatest difficulty.

Pursuant to 38 C.F.R. § 4.85(c), Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation for hearing impairment when the examiner certifies that use of the speech discrimination test is not appropriate.  Based on the VA examiner's findings that due to the severity of the Veteran's left ear hearing loss the speech discrimination test could not be utilized, Table VIa should be applied.  From Table VIa, Roman Numeral X is derived for the left ear.  As the right ear is not service-connected and shows normal hearing for VA purposes, it is assigned a Roman Numeral I.  38 C.F.R. §§ 3.383, 4.85(f).  A 10 percent evaluation is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row I, the better ear, with column X, the poorer ear. 

The findings of the aforementioned VA examination, as applied to the rating criteria for hearing impairment, show that the criteria for an evaluation in excess of 10 percent for left ear hearing loss have not been met. 

The Board acknowledges the Veteran's contentions that the January 2010 VA examiner did not follow proper protocol when administering the pure tone threshold test.  See Veteran's Notice of Disagreement, March 2010.  However, the January 2010 VA examination was conducted by a certified VA audiologist and the Board finds that nothing in the record indicates the proper testing protocol was not followed.  

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.  The symptoms associated with the Veteran's 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 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 rating in excess of 10 percent.  The Board finds the preponderance of the evidence is against the Veteran's claim for an increased evaluation for left ear 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.

III. 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 stated that he last worked in September 2000, he has made no statements, nor presented any evidence, indicating that his left ear hearing loss has resulted in overall unemployability.  Comer v. Peake, 552 F.3d 1362 (2009); see Norris v. West, 12 Vet. App. 413, 418 (1999); see also Colayong v. West, 12 Vet. App. 524 (1999);.  The Veteran stated during his January 2010 VA audiological examination that post-service he worked for 15 years in a factory on a machine production line, in pest control, as a shipping clerk and as a vending supply worker.  In his Application for Compensation, the Veteran also stated he worked as a traffic manager.  See Veteran's Application for Compensation and/or Pension, September 2009.  As the Veteran has not submitted evidence of overall unemployability, no further consideration of TDIU is necessary.


(CONTINUED ON NEXT PAGE)



ORDER

Entitlement to an initial disability rating in excess of 10 percent for service-connected left ear hearing loss is denied.




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



Department of Veterans Affairs