Citation Nr: 1313653	
Decision Date: 04/24/13    Archive Date: 05/03/13

DOCKET NO.  10-47 605	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to an initial compensable disability rating for a bilateral hearing loss disability.


REPRESENTATION

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


ATTORNEY FOR THE BOARD

S. Layton, Counsel


INTRODUCTION

The Veteran had active military service July 1962 to June 1966. 

This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2010 rating decision from the Department of Veterans Affairs (VA) regional office (RO) located in Muskogee, Oklahoma.

The Board notes that in a June 2012 Informal Hearing Presentation, the Veteran's accredited representative indicated that the issue of service connection for peripheral vascular disease of the bilateral lower extremities was also on appeal.  This issue was denied in the June 2010 rating decision on appeal.  The Veteran submitted a notice of disagreement in July 2010, and in November 2010, a Statement of the Case was issued.  However, in his VA form 9 submitted in November 2010, the Veteran explicitly stated that he was only appealing the issue of a higher rating for his bilateral hearing loss disability.  As such, the only issue before the Board at this time is entitlement to an initial compensable disability rating for a bilateral hearing loss disability.


FINDING OF FACT

Throughout the period of appeal, the Veteran's bilateral hearing loss disability has been manifest by Level I hearing in the right ear and Level II hearing in the left ear.


CONCLUSION OF LAW

The criteria for a compensable rating for bilateral hearing loss disability are not met.  38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.102, 4.85 Diagnostic Code 6100 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

With regard to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012).

Under the Veterans Claims Assistance Act of 2000 (VCAA), when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim."  38 U.S.C.A. § 5103(a)(1) (West Supp. 2012).  As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant."  38 U.S.C.A. § 5103(a)(1) (West Supp. 2012).  

For initial rating claims, where service connection has been granted and the initial rating has been assigned, the claim of service connection has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled.  Once a claim for service connection has been substantiated, the filing of a notice of disagreement (NOD) with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice.  See Dingess v. Nicholson, 19 Vet. App. 473, 490-491; Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

The Board also concludes that VA's duty to assist has been satisfied.  All of the Veteran's VA and private treatment records have been obtained to the extent possible and associated with the claims file.  The Veteran has at no time referenced any further outstanding records that he wanted VA to obtain.

With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran.  See Green v. Derwinski, 1 Vet. App. 121 (1991).  In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012).

The RO provided the Veteran with a VA examination with regard to his service-connected hearing loss disability in March 2010.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  There is no objective evidence indicating that there has been a material change in the severity of this service-connected disability since he was last examined.  See 38 C.F.R. § 3.327(a) (2012).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted.  See VAOPGCPREC 11-95.  The Board has considered the Veteran's complaint that the examination report does not provide an accurate reflection of his hearing loss disability, as the testing was conducted in a quiet atmosphere and not with the background noises present in everyday life.  However, the report of this examination reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate audiological testing, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record.  The examination was performed by an audiologist.  The information obtained during this examination is sufficient to rate the Veteran's disability under the appropriate diagnostic criteria.  The Board also observes that in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities.  See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2011).  Here, the VA examiner included a discussion of the effects of the Veteran's hearing loss, and the record otherwise includes the Veteran's statements concerning its effects.  In light of the foregoing, the Board concludes that this examination report is adequate for purposes of rendering a decision in the instant appeal.  See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

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, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

I.  Law and Regulations--General

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012).  Where there is a question as to which of two evaluations shall be applied, the higher rating 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 (2012).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 C.F.R. § 4.3 (2012).

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings.  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 based on the facts found - a practice known as "staged" ratings.

Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examination.  Evaluations of 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.  

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 addressed in 38 C.F.R. § 4.86.  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).

II.  Factual Background and Analysis

In January 2010, K.J.C., the Veteran's spouse, remarked that the Veteran had always had hearing difficulties in both of his ears.  She said that she had to repeat her conversations with him often, and background noise made his hearing worse.

On VA fee-basis audiological examination in March 2010, the Veteran reported experiencing difficulty hearing, especially women's and children's voices.  He related that he was not receiving any treatment for his hearing loss, and no functional impairment was reported.  He also mentioned that he enjoyed hunting.  On audiological testing, pure tone thresholds, in decibels (dB), were as follows:




HERTZ



1000
2000
3000
4000
AVG
RIGHT
5
20
40
75
35
LEFT
20
35
60
90
51

Speech discrimination scores were 92 percent in the right ear and 88 percent in the left ear.  The assessment was a bilateral moderately severe sensorineural hearing loss.  The audiologist further remarked that the effect of the condition on the Veteran's usual occupation and daily activities was difficulty consistently hearing and understanding speech in all settings.

As a preliminary matter, the Board notes that the Veteran does not present an exceptional pattern of hearing impairment according to VA regulations, as the pure tone threshold at all four of the specified frequencies (1000, 2000, 3000, and 4000 Hertz) is not 55 decibels or more at any time throughout the appeal.  See 38 C.F.R. § 4.86 (2012).  Consequently, the Board will evaluate the Veteran's hearing using Table VI.

Application of the findings of the March 2010 examination to Table VI reveals Level I hearing in the right ear and level II hearing in the left ear.  Application of these findings to Table VII corresponds to a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100.

To the extent that the Veteran contends that his bilateral hearing loss is more severe than currently evaluated, the Board observes that the Veteran, while competent to report his symptoms such as difficulty hearing and having others talk louder, is not competent to report that his hearing acuity is sufficient to warrant a compensable evaluation under VA's tables for rating hearing loss disabilities.  See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  

The Board in no way discounts the difficulties that the Veteran experiences as a result of bilateral hearing loss, however, it must be emphasized that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained.  Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  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 (West 2002 & Supp. 2012); 38 C.F.R. § 4.1 (2012).  As such, a compensable disability rating for a bilateral hearing loss disability is not warranted.

In addition, the Board has considered whether the Veteran is entitled to greater levels of compensation on an extra-schedular basis.  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). 

Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. 

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the bilateral hearing loss disability is inadequate.  A comparison between the levels of severity and symptomatology of the considered disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology.

The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms."  The Board finds that the evidence does not demonstrate an exceptional or unusual clinical picture beyond that contemplated by the rating criteria. 

In short, there is nothing in the record to indicate that the service-connected disability on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular rating.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired).  The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted.


ORDER

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



____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs