Citation Nr: 1314343	
Decision Date: 05/01/13    Archive Date: 05/15/13

DOCKET NO.  12-04 858A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to a higher (compensable) initial disability rating (evaluation) for bilateral hearing loss.


REPRESENTATION

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


ATTORNEY FOR THE BOARD

J. Schulman, Associate Counsel



INTRODUCTION

The Veteran, who is the appellant in this case, had service from June 1969 to December 1970.   

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which granted service connection for hearing loss and assigned an initial noncompensable (0 percent) rating.  The Veteran appealed the initial rating assignment, and the matter is now before the Board.  A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.


FINDING OF FACT

Throughout the entire initial rating period, the Veteran had bilateral hearing loss manifested by average pure tone air conduction threshold at 1,000, 2,000, 3,000, and 4,000 Hertz of no worse than 70 decibels in the right ear and 68.75 decibels in the left ear, and speech recognition ability (Maryland CNC test) of 80 percent in the right ear and 84 percent in the left ear.


CONCLUSION OF LAW

The criteria for an initial compensable rating for bilateral hearing loss have not been met in any period during the appeal.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of the VA and the claimant for procuring that evidence.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012).

This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), as was done in this case.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In this case, the RO provided a VCAA notice letter to the Veteran in April 2010, prior to the initial adjudication of the service connection claim.  The letter notified the Veteran of what information and evidence must be submitted to substantiate the claim for service connection, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA.  The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claim to the RO.  The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). 

The Veteran's hearing loss appeal arises from the initial evaluation following a grant of service connection.  Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003.  Therefore, no further notice is needed under VCAA with respect to this issue.

Nonetheless the duty to notify was satisfied by way of a letter sent to the Veteran in April 2010 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter.  The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal.  The letter also informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date pursuant to Dingess, 19 Vet. App. 473 (2006).  Based on the foregoing, adequate notice was provided to the Veteran prior to the transfer and certification of the case to the Board and complied with the requirements of 
38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b).  

Next, VA has a duty to assist a veteran in the development of the claim.  To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the  "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought-only those that are relevant to the veteran's claim"). 

Here service records have been obtained, as have records of VA treatment.  These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issues before the Board.  The Veteran indicated that he had no additional information or evidence to submit in support of the claim.

The Board also notes that the Veteran was afforded a VA examination in November 2010, during which the examiner, an audiologist, was provided the Veteran's claims file for review, took down the Veteran's history, considered the lay evidence presented, conducted objective audiometric testing, laid a factual foundation for the conclusions reached, and reached conclusions based on the examination that are consistent with the record.  In a February 2013 statement on the Veteran's behalf, the Veteran's representative argued that the Veteran should be entitled to a new VA examination to assess the current level of disability; however, there is no evidence to suggest that the Veteran's hearing has become worse since the November 2010 VA examination, and neither the Veteran nor the representative have made such an assertion.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examination or opinion has been met.  38 C.F.R. § 3.159(c)(4) (2012); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion).

All necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran.  See, Bernard v. Brown, 4 Vet. App. 384 (1993).  In addition to the evidence discussed above, the Veteran's statements in support of the claim are also of record.  The Board has carefully considered such statements and concludes that no available outstanding evidence has been identified.  Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.

For these reasons, the Board finds that the duties to notify and assist the Veteran in the development of these claim have been met, so that no further notice or assistance is required to fulfill VA's duties to notify and assist.  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).

Initial Rating for Bilateral Hearing Loss

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule).  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012).  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.
		
When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied.  See 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  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.A. § 5107; 38 C.F.R. § 3.102.

At the outset, the Board notes that the Veteran's appeal for a higher rating for bilateral hearing loss is an appeal from the initial assignment of a disability rating in November 2010.  When a veteran is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found.  Such separate disability ratings are known as staged ratings.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned).  As discussed below, the evidence shows that the Veteran's disability has not significantly changed throughout the rating period on appeal, and thus a uniform evaluation is warranted.

In the November 2010 rating decision on appeal, the Veteran was awarded service connection for bilateral hearing loss and granted a zero percent initial evaluation effective March 23, 2010.  The Veteran's bilateral hearing loss is rated under 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code (DC or Code) 6100.  Under Code 6100, hearing impairment evaluations are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Lendenmen v. Principi, 3 Vet. App. 345, 349 (1992).  The ratings schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (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.

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).  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).

In a March 2011 statement, the Veteran contended that he has difficulty hearing and attributes such difficulty to exposure to artillery fire during his time in Vietnam.  The Board notes that as entitlement to service connection for bilateral hearing loss has already been established, the question of a service-related disease or injury is not at issue.

After review of all the evidence, the Board finds that throughout the entire initial rating period, the Veteran had bilateral hearing loss manifested by average pure tone air conduction threshold at 1,000, 2,000, 3,000, and 4,000 Hertz of no worse than 70 decibels in the right ear and 68.75 decibels in the left ear, and speech recognition ability of 80 percent in the right ear and 84 percent in the left ear.  Application of the rating criteria dictates that a compensable evaluation is not warranted for the reasons discussed below.

The evidence shows that in November 2010 the Veteran underwent a VA examination which included audiometric testing.  Such examination showed that pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
25
20
40
60
LEFT
20
25
20
40
45

Puretone threshold average on the right side was 36, and on the left side was 33.  Speech audiometry using the Maryland CNC word list was 94 percent in both ears.  Hearing loss was sensorineural in nature in both ears.  The level of hearing loss was described by the examiner to range from within normal limits to moderate.  The effect on occupational functioning and daily activities was that the Veteran had trouble hearing speech clearly at times.

Based on the foregoing evidence the Board finds that, for the entire appeal period, Veteran's service-connected bilateral hearing loss has not been compensably disabling under DC 6100.  See 38 C.F.R. § 4.7 (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).  

To determine the appropriate rating evaluation for the Veteran's hearing loss, the Board first looks to Table VI of DC 6100 as directed by 38 C.F.R. § 4.85(b).  Because the Veteran's puretone threshold average on the right side was 36 hertz with 94 percent speech discrimination, Table VI assigns the Roman numeral I to the right ear.  The Veteran's left ear puretone threshold average was 33 hertz, with speech discrimination of 94 percent.  Table VI indicates the assignment of Roman numeral I for the left ear as well.  Next, the DC 6100 directs the rating specialist to apply the Roman numerals derived from Table VI, to Table VII.  Specifically, the horizontal rows of Table VII represents the ear having the better hearing and the vertical columns represent the ear having the poorer hearing.  The percentage evaluation is located at the point where the row and column intersect.  38 C.F.R. § 4.85(e).  Where the column for Roman numeral I and the row for Roman numeral I intersect, Table VII reveals that a rating of zero percent is warranted.

The rating schedule allows for each ear to be evaluated separately where there is an exceptional pattern of hearing impairment.  38 C.F.R. § 4.86.  An exceptional pattern of hearing loss occurs when puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more; or where puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz.  Id.  In this case, the Veteran's hearing loss is not an exceptional pattern of hearing impairment as contemplated by VA regulations; thus, separate evaluations for each ear are not warranted.  Furthermore, as the evidence shows the Veteran does not have deafness, special monthly compensation under 38 C.F.R. § 4.85(g) is not for consideration.

Based on the foregoing, the Board concludes that the Veteran's bilateral hearing loss has been zero percent disabling throughout the entire initial rating period.  As the preponderance of the evidence is against the claim, there is no doubt to be resolved.   38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

Extraschedular Consideration

In analyzing the Veteran's claim, the Board has considered whether referral for an extraschedular rating is warranted for the service-connected bilateral hearing loss.  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).

In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the 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.  Martinak, 21 Vet. App. at 455.  To that end, the November 2010 VA examination found that the only effect on occupational functioning and daily activities of the Veteran's hearing loss was difficulty hearing speech clearly at times.  As these functional limitations are contemplated by the rating criteria, specifically the difficulty with speech recognition, which is measured by Maryland CNC speech recognition scores, the fact that the Veteran has difficulty hearing speech clearly at times does not trigger the need for an extraschedular evaluation.

In this case, the rating criteria for hearing loss reasonably describe and assess the Veteran's hearing loss disability level and symptomatology.  The criteria rate the disability on the basis of occupational and social impairment, thus, the demonstrated manifestations, namely, loss of hearing and speech recognition (e.g., the ability to understand and hear spoken words), are contemplated by the provisions of the rating schedule.  As the Veteran's hearing loss disability picture is fully contemplated by the rating schedule, including the effect on occupational functioning and daily activities, the assigned schedular evaluation is adequate because the Veteran's symptoms are the same symptoms listed under the schedular rating criteria.  For these reasons, the Board finds that the schedular rating criteria for hearing loss is adequate to rate the Veteran's bilateral hearing loss, and referral for consideration of an extra-schedular evaluation is not warranted.  38 C.F.R. § 3.321(b). 

Finally, as discussed above, the November 2010 VA examination assessed that the only occupational effect of hearing loss was difficulty hearing speech clearly at times.  Consequently, the matter of entitlement to a total disability rating based on individual unemployability is not raised by the Veteran or the evidence of record.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).


ORDER

A higher (compensable) initial disability rating for bilateral hearing loss is denied.




____________________________________________
J. PARKER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs