Citation Nr: 1314318	
Decision Date: 05/01/13    Archive Date: 05/15/13

DOCKET NO.  09-41 863	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado



THE ISSUE

Entitlement to an initial compensable rating for bilateral hearing loss.



REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

D. M. Casula, Counsel 



INTRODUCTION

The Veteran had active service from August 1957 to August 1961.

This matter comes before the Board of Veterans' Appeals (Board) from September 2009 rating decisions of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which granted service connection for bilateral hearing loss and assigned a 0 percent (noncompensable) rating, effective May 4, 2009.


FINDING OF FACT

During the entire appeal period, audiometric findings have shown that Veteran had no more than Level I hearing acuity in the right ear, no more than Level V in the left ear, and did not have an exceptional pattern of hearing loss at any time.


CONCLUSION OF LAW

The criteria for a compensable rating for a bilateral hearing loss disability are not met for any portion of the appeal period.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, 4.87, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

Before addressing the merits of the issue on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a).

Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability).  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.

Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  None is found by the Board.  Indeed, VA's duty to notify has been more than satisfied.  With respect to the claim, the Board notes that the initial rating issue is a downstream issue from the rating decision dated in September 2009 which initially established service connection for this disability and assigned the 0 percent initial rating being contested and its effective date.  The Court held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006), that 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.  See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  

The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim.  The RO has obtained all identified and available treatment records for the Veteran, as well as his service records.  It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal.  

The Veteran was also provided with a VA audiological examination in July 2009 for his service-connected bilateral hearing loss.  The Board finds the above VA examination report, coupled with the August 2009 addendum (which included a review of the claims folder) to be a thorough and adequate upon which to base a decision with regard to the Veteran's claim.  The VA examiner in September 2009 personally interviewed and examined the Veteran, to include audiological testing, and elicited a history from him, and provided the information necessary to evaluate his service-connected bilateral hearing loss under the applicable rating criteria.  Therefore, the available records and medical evidence have been obtained in order to make adequate determinations as to these claims.

The Board notes that the Veteran's last VA examination is now nearly three years old.  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.  VAOPGCPREC 11-95.  Consideration has been given to an April 2013 statement made by the Veteran, through his representative, that his hearing loss was "worse than that which is represented by VA." The Board does not find that this statement conveys the notion that there has been a worsening of the Veteran's hearing loss disability since his last examination, which would trigger the need to Remand the matter for a new examination.  Snuffer v. Gober, 10 Vet. App. 400 (1997).  The Veteran has made no statement regarding a worsening of his disability.  Rather, the Board interprets the April 2013 statement as a contention that the Veteran's hearing loss disability is not accurate rated.  He has repeatedly asserted that he should be receiving a rating of at least 10 percent.  Moreover, and of equal import, there is no evidence that there has been a change in the Veteran's hearing loss since he was examined in July 2009.  

Therefore, the available records and medical evidence have been obtained in order to make an adequate determination as to this claim.  The Board finds that VA's duty to assist has been met.  38 C.F.R. § 3.159(c).  No further notice or assistance to the Veteran is required to fulfill VA's duties to notify and assist him in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see Quartuccio v. Principi, supra.

II. Factual Background and Analysis

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities.  The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155 ; 38 C.F.R. § 4.1, 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 for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3. 

In general, when 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, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim.  Fenderson v. West, 12 Vet. App. 119 (1999).  Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007). 

The assignment of disability ratings for impairment of hearing acuity is derived by the 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). 

The Veteran contends he should be entitled to an initial compensable rating for his service-connected bilateral hearing loss, which has been rated by the RO under the provisions of Diagnostic Code (DC) 6100.  

The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (at Levels I through XI) for hearing impairment.  Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in both ears.  See 38 C.F.R. § 4.85. 

VA rating criteria for evaluating hearing loss disability provide ratings from 0 (noncompensable) to 100 percent, based on the results of controlled speech discrimination tests together with the results of pure tone audiometry tests.  38 C.F.R. §§ 4.85, 4.86, DC 6100.  "Pure tone threshold average," as used in Table VI, is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz , divided by four.  Average pure tone decibel loss is located on Table VI along a horizontal axis, and percent of speech discrimination is located along a vertical axis.  These axes intersect to determine the Roman numeral designation for hearing impairment in each ear.  The results are then matched between the "better" ear and the "poorer" ear on Table VII to produce a disability rating under DC 6100. 

When the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral.  38 C.F.R. § 4.86(a)  (2012). Additionally, when the puretone threshold is 30 decibels or less at 1,000 Hertz , and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral.  Thereafter, that numeral will be elevated to the next higher numeral.  38 C.F.R. § 4.86(b).

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.  Examinations will be conducted without hearing aids.  38 C.F.R. § 4.85(a).

In Martinak v. Nicholson, 21 Vet. App. 447   (2007), 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.  Martinak, 21 Vet. App. at 455.  The Court also noted, however, that even if an audiologist's description of the functional effects of the veteran's hearing disability was somehow defective, the veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  Id.   

The most reliable and probative evidence of record consists of the VA audiological test results of July 2009.  In that regard, the VA audiological examination in July 2009 revealed pure tone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 hertz (Hz) as follows:  15, 55, 65, and 65, for an average of 50, and pure tone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows 50, 60, 60, and 70, for an average of 60.  The speech recognition score, using the Maryland CNC Test, was 92 in the right ear and 72 in the left ear. 

Evaluating these VA audiological test results cited above, the Board finds that when the pure tone threshold averages and the speech recognition scores for the right ear from the VA examination in July 2009 are applied to Table VI, the numeric designation of hearing impairment is level I.  When the pure tone threshold averages and speech recognition scores for the left ear from the VA examination in July 2009 are applied to Table VI, the numeric designation of impairment is level V.  When these numeric designations for the right and left ears from the two VA examinations are applied to Table VII (Percentage Evaluation for Hearing Impairment-Diagnostic Code 6100), the percentage of disability for hearing impairment is 0 percent, and a compensable rating is therefore not warranted.  See 38 C.F.R. § 4.85, DC 6100.  In addition, the Board notes that the VA examiner in July 2009 discussed the functional effects caused by the Veteran's hearing disability in his report, including noting that there were significant effects on his occupational activities due to hearing difficulty, and that the Veteran reported his left ear hearing loss was worse than his right.  See Martinak v. Nicholson, supra.  

The provisions of 38 C.F.R. § 4.86 which address exceptional patterns of hearing loss are not applicable.  There is no showing that Veteran had an exceptional pattern of hearing loss at any time.  

Consideration is given to the Veteran's statements regarding the effects of his hearing loss and his report that his hearing loss is worse than that which is represented by VA.  He is competent and credible in this regard.  However, as noted above, the evaluation of hearing loss is reached by a mechanical application of the rating schedule, to the numeric designations assigned, after audiometric evaluations are rendered.  See Lendenmann v. Principi, supra.  The requirements of 38 C.F.R. § 4.85 set out the percentage ratings for exact numerical levels of impairment required for a compensable evaluation of hearing loss, which requires specific testing.  In reviewing the record, the Board finds that the Veteran's degree of bilateral hearing loss does not meet the standards for a compensable evaluation during the 2009 VA examination.  Thus, there is no basis for assignment of a compensable rating for bilateral hearing loss at any point since the grant of service connection.  Fenderson v. West, supra.  The preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for a compensable rating for bilateral hearing loss must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 

III. Extraschedular Consideration

In addition, the Board notes that the Veteran's disability does not warrant referral for extra-schedular consideration.  In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extra-schedular disability rating is made.  38 C.F.R. § 3.321(b)(1) . 

There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate.  Thun v. Peake, 22 Vet. App. 111 (2008).  First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule.  Id.  If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms."  Id.; see also 38 C.F.R. § 3.321(b)(1).  If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Id.  

Here, as explained above, the Board concludes that the rating criteria for the Veteran's service-connected bilateral hearing loss, reasonably describe his disability level and symptomatology, and do provide for a greater evaluation for more severe symptoms.  For these reasons, the disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate.  Therefore, referral for the assignment of an extraschedular disability rating is not warranted.

ORDER

An initial compensable rating for bilateral hearing loss is denied.



____________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs