Citation Nr: 1310498	
Decision Date: 03/29/13    Archive Date: 04/09/13

DOCKET NO.  12-13 451	)	DATE
	)
	)

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


THE ISSUE

Entitlement to a disability rating in excess of 20 percent for the Veteran's service-connected bilateral hearing loss. 


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

E. I. Velez, Counsel
INTRODUCTION

The Veteran had active service from March 1953 to January 1960. 

This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, that denied the benefit sought on appeal. The Veteran appealed that decision and the case was referred to the Board for appellate review. 

In August 2012 the Veteran testified at a videoconference Board hearing before a Veterans Law Judge.  A transcript of that hearing is of record and has been associated with the claims file. 

In October 2012, the Board remanded the claim for further development.  The requested development has been substantially complied with and the claim is ready for appellate review. 

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The Veteran's hearing is manifested by no more than Level V hearing acuity bilaterally.


CONCLUSION OF LAW

The criteria for a disability rating in excess of 20 percent for bilateral hearing loss disability have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012).
REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102 , 3.156(a), and 3.326(a) (2011), VA has a duty to notify a claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant, and what part VA will attempt to obtain for the claimant.  38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b)(1). 

The record shows that through a VCAA letter dated in June 2011, the Veteran was informed of the information and evidence necessary to warrant entitlement to the benefit sought on appeal.  The Veteran was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).  The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).

Additionally, as noted above, the Veteran presented testimony before the undersigned.  During the course of that testimony, the undersigned Acting Veterans Law Judge briefed the Veteran on the elements of his claim and the types of evidence needed to substantiate the claim.  See Bryant v. Shinseki, 23 Vet. App. 488 (2010).  

The Board also finds that there has been compliance with the assistance provisions set forth in the law and regulations.  The record in this case includes VA examination reports, VA treatment records, and lay evidence.  The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary.  See generally 38 C.F.R. § 3.159(c).  No additional pertinent evidence has been identified by the Veteran. 

The Veteran was afforded multiple VA examinations to address the level of disability of his hearing loss disability.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  The Board notes that the examiners were provided with an accurate history, the Veteran's history and complaints were recorded, the examination reports set forth detailed examination findings in a manner that allows for informed appellate review under applicable VA laws and regulations, and the examiners offered the necessary findings.  Therefore, the Board finds the examinations to be sufficient and adequate for rating purposes.

Legal Criteria and Analysis

Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  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.

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

In evaluating service-connected hearing loss, disability evaluations are derived from a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).  Evaluations of bilateral hearing loss range from noncompensable (0 percent) to 100 percent based on organic impairment of hearing acuity.  Audiological examinations used to measure impairment must be conducted by a state-licensed audiologist and must include both a controlled speech discrimination test (Maryland CNC) and pure tone audiometric tests.  38 C.F.R. § 4.85(a). 

The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the pure tone threshold average which is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz , divided by four.  See 38 C.F.R. § 4.85, Diagnostic Code 6100.

Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing.  Id. 

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.  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).

To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels designated from I for essentially normal acuity, through XI for profound deafness.  38 C.F.R. § 4.85, Tables VI, VII.

The Veteran was afforded a VA examination in June 2011.  Average puretone thresholds were as follows:




HERTZ



1000
2000
3000
4000
RIGHT
	20
20
30
45
LEFT
10
25
45
55

Average puretone thresholds were 29 on the right and 34 on the left. Speech recognition test was 100 percent on the right and 94 on the left. 

The examiner noted test results showed a moderate to severe sensorineural hearing loss, bilaterally.  Tympanometry and acoustic reflexes could not be tested.  The examiner noted there were no significant effects on occupation or daily activities.  

At the August 2012 hearing, the Veteran testified that he reads rather than watch television as he cannot pick up the voices on the television.  He testified that without his hearing aides he is essentially deaf.  

The Veteran was afforded another VA examination in December 2012.  At the time, average puretone thresholds were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
	60
60
60
65
LEFT
60
55
60
65

Average puretone thresholds were 61 on the right and 60 on the left.  Speech recognition tests were 68 percent on the right and 84 percent on the left.  

The examiner stated that a person with the Veteran's degree of hearing loss would have difficulty understanding soft speech and what was being said unless the person was three to five feet away.  She further noted that the Veteran reported increased frustration with the inability to understand speech, to the point in which he does not like going anywhere due to embarrassment.  

When applying the results of the June 2011 and December 2012 VA examinations to tables VI and Table VIa, table VIa provides higher numerical values bilaterally of Level V.  Applying that numerical value to Table VII, the result is a 20 percent disability evaluation.  

Considering the above, a disability rating in excess of 20 percent for bilateral hearing loss is not warranted based on the June 2011 and December 2012 examination results.  For these reasons, the Board finds that the criteria for a disability rating in excess of 20 percent for bilateral hearing loss have not been met.  38 C.F.R. § 4.85, Diagnostic Code 6100.

Extraschedular Consideration

The RO must refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular rating where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1) (2012).  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 115-116.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required.  Id. at 116.

In making this determination, the Board is cognizant of the holding of Martinak v. Nicholson, 21 Vet. App. 447 (2007).  In that decision, the United States Court of Appeals for Veterans Claims (Court) noted that, unlike the rating schedule for hearing loss, the extraschedular provisions did not rely exclusively on objective test results to determine whether referral for an extraschedular rating was warranted.  The Court held that 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.  Id. at 455.

In this case, the Board acknowledges the Veteran's decreased hearing acuity.  The Board is also aware that the VA examiner who conducted the December 2012 examination noted that the Veteran had to rely upon hearing aid amplification to hear conversational speech effectively.  The examiner noted that the Veteran was reporting increased frustration with the inability to understand speech, to the point where he did not like going "anywhere" due to embarrassment.  A Veteran with a hearing loss to this extent was noted to have difficulty understanding soft speech and what is being said unless someone is three to five feet away; the examiner indicated that the Veteran needed hearing aids and could benefit from lipreading.  These symptoms, however, are consistent with the assigned 20 percent disability evaluation described above and are not "exceptional."  Moreover, the Veteran has not asserted, and the Board has not found, any reason to doubt the accuracy of the audiological examinations.  As the Veteran's hearing loss was appropriately measured and applied, the Board finds that the Rating Schedule contemplates all aspects of his disability, so that referral for extraschedular consideration is not warranted regarding the claim for increased ratings for bilateral hearing loss. 

The Board notes that the Veteran has not alleged, nor does the record suggest, that this case raises a claim for a total disability rating based upon individual unemployability on account of service-connected disability.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  


ORDER

Entitlement to a disability rating in excess of 20 percent for bilateral hearing loss disability, is denied.  



____________________________________________
A.C. MACKENZIE
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs