Citation Nr: 1313581	
Decision Date: 04/23/13    Archive Date: 05/03/13

DOCKET NO.  05-39 627	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUE

Entitlement to an initial evaluation in excess of 10 percent for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

R. Dodd, Associate Counsel


INTRODUCTION

The Veteran had active military service from July 1975 to July 1982. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. 

The Veteran was scheduled for a hearing at the RO before a Veterans Law Judge in March 2007, but, in a January 2007 signed statement, stated that he was unable to attend as he lived in Germany and did not request that the hearing be rescheduled. As such, his hearing request is deemed withdrawn.  See 38 C.F.R. § 20.704(d) (2012).

Also, in his January 2007 written statement, the Veteran said that he wanted to be represented (apparently at the hearing), that he applied for a representative in 2005, and that he was always in contact with a representative from the Federal Benefits Unit of the American Consulate in Frankfurt.  However, the Board notes that, in his July 2005 signed power of attorney (VA Form 21-22), the veteran appointed the California Department of Veterans Affairs as his accredited representative. 

This claim was previously before the Board and remanded for further development to the RO in March 2008 June 2011.  The requested development having been completed, the claim is once again before the Board.

Although the issue formerly on appeal was for entitlement to a compensable evaluation, by means of a rating decision dated January 2012, the RO awarded an initial evaluation of 10 percent for the Veteran's bilateral hearing loss, effective to the date of claim, November 19, 2003.  A veteran is assumed to be seeking the highest evaluation available, to include separate evaluations, and a claim remains in controversy where less than the maximum available benefit is awarded.  AB v. Brown, 6 Vet. App. 35, 38-39 (1993).  

The issues of entitlement to service connection for a left hand condition and a right shoulder condition have been raised by the record, as the Veteran has indicated in an August 2012 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  

A review of the Virtual VA paperless claims processing system revealed nothing further pertinent to the present appeal.

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a total rating based on individual unemployability (TDIU) claim is part of an increased rating claim when such claim is raised by the record.  As of this writing, this issue has not been raised by the record and will not be addressed in this decision.  


FINDING OF FACT

Bilateral hearing loss has been manifested by auditory acuity levels of no worse than Roman Numeral IV in the right ear and Roman numeral IV in the left ear.


CONCLUSION OF LAW

The criteria for an initial rating in excess of 10 percent for bilateral hearing loss have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VCAA

Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated-it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Dingess/Hartman, 19 Vet. App. at 490; Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007) (noting that once an initial VA decision awarding service connection and assigning a disability evaluation and effective date has been made, section 5103(a) notice is no longer required).  Additionally, where service connection has been granted, the claimant bears the burden of demonstrating prejudice from defective notice with respect to downstream elements such as effective dates or disability ratings.  Goodwin v. Peake, 22 Vet. App. 128, 137 (2008).  The Veteran has made no such assertions here.  Accordingly, regarding the initial evaluation for bilateral hearing loss, VA's duty to notify has been satisfied.  

VA's duty to assist the Veteran has also been satisfied.  38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3).  The Veteran's service treatment records and private treatment records have been obtained.  Those private treatment records requiring translation have the requisite translations associated in the claims file.  The Board notes that the Veteran submitted additional private treatment records in March 2012 that have not been translated.  As they appear to have been sent in relation to the Veteran's claims for a hand and shoulder condition, translation is not deemed necessary for the appeal relating to the issue of increased evaluation for bilateral hearing loss.  VA provided the Veteran with adequate medical examinations in October 2004 and November 2011.  The examinations were adequate because they contained a history obtained from the Veteran and thorough examinations relevant to the applicable rating criteria.  They also addressed the functional effects caused by the Veteran's disabilities, to include the effects on his occupation and usual daily activities.  See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file.  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486.

Legal Criteria
  
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2012).  The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012).  In resolving this factual issue, only the specific factors as enumerated in the applicable rating criteria may be considered.  See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992).

The current appeal is based on the assignment of an initial rating for a disability following an initial award of service connection, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous."  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, 'staged' ratings may be assigned for separate periods of time.  Id.  When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim.  Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009).

The Veteran's bilateral hearing loss is rated as 10 percent disabling under the diagnostic code for hearing loss in accordance with the General Rating Formula for Impairment of Auditory Acuity.  38 C.F.R. § 4.85, Diagnostic Code 6100.  The severity of hearing loss is determined by comparison of audiometric test results with specific criteria.  Id.  Ratings of bilateral defective hearing range from 0 percent 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 Hertz.  Id.  The Schedule allows for audiometric test results to be translated into a numeric designation ranging from Level I to Level XI, for profound deafness, to rate the degree of disability from bilateral service-connected defective hearing.  Id.  The ratings derived from the Schedule are intended to make proper allowance for improvement by hearing aids.  Id.

In certain situations, the rating criteria provide for rating exceptional patterns of hearing impairment.  If the puretone threshold is greater than 55 decibels at each of four specified frequencies (1000, 2000, 3000, and 4000 Hertz), VA must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  If the puretone threshold is 30 decibels or less at 1000 Hertz and simultaneously 70 decibels or more at 2000 Hertz  , VA must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral and then elevate that numeral to the next highest numeral for consideration.  Each ear is evaluated separately.  38 C.F.R. § 4.86

Analysis

The Veteran claims that his bilateral hearing loss is worse than reflected by his initial rating of 10 percent.  To this effect, the Veteran stated in a March 2012 statement that doctors have told him that his hearing loss is way over 40 percent.  In his May 2005 Notice of Disagreement, the Veteran stated that he may not be able to get a job because of his hearing loss, as no one wants to hire someone who they have to yell at.  The Board notes, however, that the Veteran reported working as a stockman in a German company in his November 2011 VA examination. 

A review of the Veteran's private treatment records shows that he was treated on several occasions for bilateral hearing loss.  In a November 2003 record, the physician indicated that the Veteran had been treated since 1995 for hearing reduction.  The Veteran was diagnosed with inner hearing loss both sides with tinnitus and eustachitis in both ears.  Audiogram revealed mid-grade sensory neural middle and high tone loss on both sides.  Speech discrimination, which did not use the Maryland CNC, showed sensitivity loss with increase of the optimal understanding on the right and a discrimination loss of 10 percent on the left.  A March 2004 treatment record showed a diagnosis of medium grade inner ear loss of hearing on both sides with tinnitus aurium and eustachitis on both sides.  It was indicated that the Veteran had been prescribed hearing aids.  In an October 2010 record, the Veteran was diagnosed with moderate to severe inner ear hearing loss on both sides status post fitting with a hearing aid.  Tone audiometry revealed moderate to severe hearing loss on both sides, independent of frequency and unchanged compared to previous findings.  Speech audiometry showed no hearing loss, however, there was a decrease of the understandable volume on both sides.  It was not indicated that the Maryland CNC was used.  

A VA audiological examination was conducted in October 2004.  At that examination, the Veteran gave a history of noise exposure in the military, in which he was around weapons fire and used radio head sets in his helmet. The Veteran reported hearing loss onset in the 1980's and that it has continually worsened.  

Pure tone thresholds, in decibels, were as follows:
 
 
 
 
HERTZ
 
 
 
500
1000
2000
3000
4000
RIGHT
35
40
60
60
60
LEFT
40
50
65
65
65
 
Speech audiometry was not conducted.  The examiner diagnosed the Veteran with moderately severe sensory-neural hearing loss on both sides.

A VA audiological examination was also conducted in November 2011.  At that examination, the examiner noted that there has not been any significant noise exposure since the last examination in 2004.  The Veteran indicated that his hearing had worsened since 2004 and that he had worn hearing aids since 2003.  

Pure tone thresholds, in decibels, were as follows:
 
 
 
 
HERTZ
 
 
 
500
1000
2000
3000
4000
RIGHT
45
55
65
65
65
LEFT
45
50
60
65
65
 
Speech audiometry was not conducted because of speech problems.  The examiner indicated that there was a slight worsening in the right ear when compared to the 2004 examination, but that it was rather small in scope.  As such, hearing loss remained basically unchanged and showed a moderately severe two-sided sensory-neural hearing disorder.

Based on the above, the Board finds that the Veteran's bilateral hearing loss only meets the criteria for a 10 percent evaluation throughout the entire appeal period.  The Veteran's bilateral hearing loss, as shown in the 2004 VA examination, is manifested by hearing impairment with a numeric designation of Level IV in the right ear and Level III in the left ear.  See 38 C.F.R. § 4.85, Diagnostic Code 6100.  These level designations are taken by applying the average hearing loss in decibels for each ear to Table VIa, which is utilized when there are no speech discrimination values provided, as is the case here.  Id.  When those level designations are applied to Table VII, an evaluation of 10 percent is shown.  Id.  The Veteran's bilateral hearing loss, as shown in the 2011 VA examination, is manifested by hearing impairment with a numeric designation of Level IV in the right ear and Level IV in the left ear.  Id.  Table VIa was also utilized in determining these level designations, as speech discrimination values were not provided in the 2011 examination either.  Id.  When those level designations are applied to Table VII, an evaluation of 10 percent is also shown.  Id.  No other audiometric or speech discrimination values acceptable for VA purposes were shown in the Veteran's private treatment records.  As such, the evidence of record does not reflect entitlement to an evaluation in excess of 10 percent for bilateral hearing loss.  

The Board also notes that there is evidence of right ear exceptional pattern of hearing impairment during the time period in question, as shown in the audiometric results of the November 2011 VA examination.  This is because the Veteran's hearing is above 55 decibels at all four frequencies starting at 1000 Hz.  See 38 C.F.R. § 4.86.  As such, the Veteran is entitled to the utilization of both hearing impairment tables from the Schedule.  Id.  However, due to the fact that speech discrimination metrics were not provided, Table VIa is the only option that is available for this evaluation and renders the issue of exceptional pattern of hearing impairment moot.  Id.

Consideration has been given regarding whether the schedular evaluation is inadequate, requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of 'an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.  38 C.F.R. § 3.321(b)(1) (2012); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that referral for extra-schedular consideration must be addressed when raised by the veteran or reasonably raised by the record); Martinak, 21 Vet. App. at 447 (noting that functional effects of hearing loss must be considered in an extraschedular determination).  

An extra-schedular evaluation is for consideration 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.  Floyd v. Brown, 9 Vet. App. 88, 94 (1996).  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.  Thun, 22 Vet. App. 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.  38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116.

In this regard, the schedular evaluation in this case is not inadequate, as the diagnostic criteria adequately assess the severity and symptomatology of the Veteran's disability, as the criteria assess the Veteran's level of hearing loss during the time period in question.  The Veteran has asserted that his hearing loss could affect his ability to obtain employment.  The Board is sympathetic to these statements, but notes that difficulty hearing is already contemplated by the rating schedule and that the Veteran has been shown to be able to maintain employment as a stockman at a German company without marked interference.  Also, there is no indication of frequent hospitalizations related to the Veteran's condition.  Consideration of an extraschedular rating is thus not warranted. 

In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The evidence of record does not warrant ratings in excess of those assigned for the Veteran's hearing loss at any time during the period pertinent to this appeal.  38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); see also Fenderson, 12 Vet. App. at 126.  


ORDER

Entitlement to an initial evaluation in excess of 10 percent for bilateral hearing loss is denied.



_____________________________________________
Alexandra P. Simpson
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs