Citation Nr: 1307230	
Decision Date: 03/04/13    Archive Date: 03/11/13

DOCKET NO.  10-42 116	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

Entitlement to a compensable rating for bilateral hearing loss prior to June 26, 2012, and in excess of 10 percent thereafter.  


ATTORNEY FOR THE BOARD

K. Conner, Counsel


INTRODUCTION

The appellant served on active duty from January 1972 to September 1975.  

This matter came to the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which, inter alia, denied a compensable rating for bilateral hearing loss.  The claim was certified to the Board by the RO in Nashville, Tennessee.  

In March 2010, the appellant submitted a notice of disagreement with respect to all of the issues addressed in the February 2009 rating decision.  In August 2010, a Statement of the Case addressing these issues was provided to the appellant and his then-representative.  In September 2010, the appellant submitted a VA Form 9 on which he indicated that he had read the Statement of the Case and wished to limit his appeal to the issue of entitlement to a compensable rating for bilateral hearing loss.  

In an October 2012 rating decision, VA increased the rating for the appellant's bilateral hearing loss to 10 percent, effective June 26, 2012.  Although an increased rating was granted, the issue remains in appellate status, as the maximum schedular rating has not been assigned nor has the appellant withdrawn his appeal.  AB v. Brown, 6 Vet. App. 35, 38 (1993).  

In June 2011, the appellant appointed a private attorney as his representative.  In December 2012, the attorney notified VA that she had withdrawn as the appellant's attorney.  38 C.F.R. § 14.631 (2012).  No attorney has ever filed a VA Form 21a as required under 38 C.F.R. § 14.629(b)(2) (2012).  As there is no indication that the appellant thereafter appointed new representative, the Board finds that he is representing himself.  


FINDINGS OF FACT

1.  Audiometric testing shows that the appellant's service-connected bilateral hearing loss exhibited no more than level I hearing loss in both ears prior to June 26, 2012, and there was no evidence of a marked interference with employment, frequent periods of hospitalization, or other exceptional or unusual disability features such that the schedular evaluation was inadequate.

2.  Audiometric testing shows that as of June 26, 2012, the appellant's service-connected bilateral hearing loss exhibited no more than level III hearing loss in the right ear and Level IV hearing loss in the left ear, and there was no evidence of a marked interference with employment, frequent periods of hospitalization, or other exceptional or unusual disability features such that the schedular evaluation was inadequate.


CONCLUSION OF LAW

The criteria for a compensable rating for bilateral hearing loss prior to June 26, 2012, and in excess of 10 percent thereafter, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.85, 4.86, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

As a preliminary matter, the Board finds that the requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with respect to the issue adjudicated in this decision.  There is no issue as to providing an appropriate application form or completeness of the application.  In August 2008, prior to the initial decision on the claim, VA notified the appellant of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined.  

VA fulfilled its duty to assist the appellant in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations.  There is no evidence that additional, relevant records have yet to be requested, or that additional examinations are in order.  


Background

The appellant's July 1975 military separation medical examination and a post-service October 1975 VA medical examination note diagnoses of bilateral hearing loss at high frequencies.  

In a November 1975 rating decision, VA granted entitlement to service connection for bilateral high frequency hearing loss and assigned an initial noncompensable rating, from September 11, 1975.  

In August 2008, the appellant submitted an application for VA compensation benefits, seeking, inter alia, entitlement to an increased rating for his service-connected bilateral hearing loss.  

In support of his claim, the RO obtained VA clinical records showing that in August 2008, the appellant underwent an initial evaluation to establish care with VA.  At that time he had numerous complaints, but the examiner noted that he did not report hearing loss.  Examination of the appellant's head, ears, nose and throat was negative in all pertinent respects.  Subsequent VA clinical records obtained in support of the appeal are negative for notations of hearing loss.  

In October 2008, the appellant was afforded a VA medical examination at which he reported decreased hearing acuity.  The appellant indicated that his hearing loss caused difficulties when watching television and communicating on the telephone.  Audiological evaluation showed pure tone thresholds, in decibels, as follows:



HERTZ



1000
2000
3000
4000
RIGHT
25
15
80
75
LEFT
25
15
85
90

The puretone averages were 49 decibels on the right and 54 decibels on the left.  Speech audiometry revealed speech recognition ability of 94 percent, bilaterally.  

The appellant again underwent VA medical examination in June 2012, at which he reported decreased hearing acuity.  Audiological evaluation showed pure tone thresholds, in decibels, as follows:



HERTZ



1000
2000
3000
4000
RIGHT
35
30
90
80
LEFT
35
30
95
100

The puretone averages were 59 decibels on the right and 65 decibels on the left.  Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 80 percent in the left ear.  The diagnosis was bilateral sensorineural hearing loss.  

With respect to the impact of the appellant's hearing loss on his employment, the appellant reported that he had previously worked in manufacturing and did not feel as if his hearing loss interfered with his ability to perform that job.  He indicated that he had also worked in another job which had required the use of a radio to communicate which had been a challenge.  The examiner indicated that the appellant's hearing loss alone should not be a barrier to employment in a wide range of settings.  He explained that many individuals with the appellant's degree of hearing loss functioned well in many occupational settings, although his hearing loss could cause some problems depending on vocation.  The examiner opined that the appellant may have trouble in very noisy environments or with non face-to-face communications equipment, such as intercoms and radios, or in jobs which required a great deal of attention to high pitched sounds.  With respect to the impact of the appellant's hearing loss on his daily activities, the appellant reported difficulty hearing in situations where there is background noise.  He reported needing to frequently ask his spouse to repeat herself which had impacted their relationship.  

Applicable Law

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Separate diagnostic codes identify the various disabilities.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran.  38 C.F.R. § 4.3.

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).

Where, as here, a Veteran appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before she filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings.  Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994).  Where factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time.  Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007).

Under VA regulation, an examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test.  Examinations are to be conducted without the use of hearing aids.  To evaluate the degree of disability from defective hearing, the rating schedule establishes 11 auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness.  These are assigned based on a combination of the percent of speech discrimination and the puretone threshold average, as contained in a series of tables within the regulations.  The puretone threshold average is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four.  38 C.F.R. § 4.85.

The regulatory provisions also provide two circumstances under which alternative tables can be employed.  One is where the puretone thresholds in any four of the five frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz are 55 decibels or greater.  The second is where puretone thresholds are 30 decibels or less at frequencies of 1,000 Hertz and below, and are 70 decibels or more at 2,000 Hertz.  See 38 C.F.R. § 4.86.

The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b).  Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Analysis

Applying the facts in this case to the criteria set forth above, the Board finds that the preponderance of the evidence is against the assignments of a compensable rating for bilateral hearing loss prior to June 26, 2012, and in excess of 10 percent thereafter.  

With respect to the period prior to June 26, 2012, the pertinent evidence includes the August 2008 VA medical examination report which shows an average pure tone threshold of 49 decibels in the right ear with speech discrimination of 94 percent correct.  The appellant also exhibited an average pure tone threshold of 54 decibels in the left ear with speech discrimination of 94 percent correct.  Under 38 C.F.R. § 4.85, Table VI, the only possible interpretation of these examination results is that the appellant's hearing loss was at Level I in both ears, warranting a noncompensable rating.  38 C.F.R. § 4.85, Diagnostic Code 6100.  The Board has also considered the provisions of 38 C.F.R. §§ 4.85(c) and 4.86, but these audiometric findings show that the alternative table is not applicable.

The Board has carefully reviewed the remaining record in its entirety, but finds no other probative evidence of record showing that the appellant's hearing loss disability met the criteria for a compensable rating prior to June 26, 2012.  

On June 26, 2012, however, another VA audiometric examination was performed and showed that the appellant had an average pure tone threshold of 59 decibels in the right ear with speech discrimination of 84 percent correct.  He had an average pure tone threshold of 65 decibels in the left ear with speech discrimination of 80 percent correct.  The only possible interpretation of these examination results is that the appellant's hearing loss was at Level III in the right ear and Level IV in the left ear, warranting a 10 percent rating but no higher.  38 C.F.R. § 4.85, Diagnostic Code 6100.  

Again, the Board has also considered the provisions of 38 C.F.R. §§ 4.85(c) and 4.86, but these audiometric findings show that the alternative table is not applicable.  The Board has also reviewed the remaining record in its entirety, but finds no other probative evidence of record showing that the appellant's hearing loss disability is more severe for compensation purposes than demonstrated on the VA audiological evaluation discussed above.  

With respect to both periods in question, the Board has considered the appellant's reports that his hearing loss disability interferes with activities such as watching television and communicating in environments with background noise, but finds that such factors do not provide a basis upon which to award a higher schedular rating for bilateral hearing loss.  Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  In this case, as explained above, the numeric designations correlate to a noncompensable disability rating prior to June 26, 2012, and a 10 percent rating thereafter.  

In reaching this decision, the Board has also considered whether an extraschedular rating is warranted with respect to the appellant's bilateral hearing loss.  38 C.F.R. § 3.321 (2012); Bagwell v. Brown, 9 Vet. App. 157 (1996) (the question of extraschedular rating is a component of the veteran's claim for an increased rating).  After reviewing the record, however, the Board finds that there is no basis for further action on this question.  Although the appellant's hearing loss has been noted to impair his ability to engage in certain activities such as communicating with non face-to-face equipment, there is no objective evidence of record demonstrating that the appellant's service-connected hearing loss markedly interferes with his employment, beyond that contemplated by the rating schedule.  The appellant has reported no time lost from employment during the pendency of this claim.  There is also no evidence of record showing that he has been frequently hospitalized due to hearing loss.  Indeed, it does not appear that he has ever been hospitalized for this disability at all.  Consequently, the Board finds that no further action on this matter is warranted.  38 C.F.R. § 3.321(b)(1) (2012); Thun v. Peake, 22 Vet. App. 111, 115 (2008).

Finally, the Board has also considered Rice v. Shinseki, 22 Vet. App. 447, 453 (2009).  In this case, however, the record on appeal contains no indication that the appellant is unemployable as a result of his service-connected bilateral hearing loss and the appellant has not specifically contended otherwise.  Indeed, at the June 2012 VA medical examination, the appellant reported that he been able to overcome the challenges presented by his hearing loss disability and maintain employment.  The examiner further concluded that the appellant's hearing loss alone should not be a barrier to employment in a wide range of settings.  Absent probative evidence of unemployability, the Board therefore concludes that consideration of a total rating based on individual unemployability due to service-connected disability is not warranted with respect to this claim.



ORDER

Entitlement to a compensable rating for bilateral hearing loss prior to June 26, 2012, and in excess of 10 percent thereafter, is denied.  




______________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs