Citation Nr: 1314801	
Decision Date: 05/03/13    Archive Date: 05/15/13

DOCKET NO.  10-41 333	)	DATE
	)
	)

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


THE ISSUES

1. Entitlement to a rating greater than 20 percent for bilateral hearing loss prior to August 20, 2012.

2. Entitlement to a rating greater than 40 percent for bilateral hearing loss beginning August 20, 2012.
 

REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran and spouse


ATTORNEY FOR THE BOARD

H.J. Baucom, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1951 to January 1955.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued in November 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas.

In October 2010 the Veteran testified before the undersigned Veterans Law Judge in a hearing at the RO in Lincoln, Nebraska.  A transcript of the proceeding is associated with the claims file.

In February 2012 and July 2012 the Board remanded the claim for further development which has been completed. 

A January 2013 rating decision increased the rating to 40 percent effective August 20, 2012.  As this was not a complete grant of benefits the issues remain on appeal. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1. Prior to August 20, 2012 the Veteran's hearing loss measured Level III in the right ear and Level IV in the left ear at the most impaired.

2. Beginning August 20, 2012 the Veteran's hearing loss measured Level VIII in the right ear and Level VII in the left ear at the most impaired.


CONCLUSIONS OF LAW

1. The criteria for the assignment of rating greater than 20 percent for bilateral hearing loss prior to August 20, 2012 have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.383, 4.85, 4.86, Diagnostic Code 6100 (2012).

2. The criteria for the assignment of rating greater than 40 percent for bilateral hearing loss beginning August 20, 2012 have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.383, 4.85, 4.86, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Notice and Assistance

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, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011).  

An October 2009 letter satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

The Veteran's VA medical treatment records have been obtained; he did not identify any additional private or VA treatment records pertinent to the appeal.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  

The Board has reviewed the Veteran's "Virtual VA" file. 

The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159 (c) (2).  

VA examinations were conducted in October 2009 and August 2012; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes.  38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  The examinations were adequate as the examiners evaluated the Veteran's current disability level and provided findings to allow for proper application of the rating criteria.

There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).  

Increased Ratings

In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  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 importance.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Separate ratings may be assigned for separate periods of time based on the facts found, however.  This practice is known as "staged" ratings."  Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  

If the evidence for and against a claim is in equipoise, the claim will be granted.  A claim will be denied only if the preponderance of the evidence is against the claim.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).  Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant.  38 C.F.R. § 4.3.  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 evaluation.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.  

Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing.  See Lendenman v. Principi, 3 Vet. App. 345 (1992); 38 C.F.R. § 4.85. 

The noncompensable evaluation for bilateral hearing loss was assigned under Diagnostic Code 6100.  

Under the rating criteria, the basic method of rating hearing loss involves audiological test results of organic impairment of hearing acuity, as measured by the results of controlled speech discrimination testing (Maryland CNC) together with the average decibel threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 hertz.  These test results are entered into a table of the rating schedule (Table VI) to determine the auditory acuity level of each ear (ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness), and these auditory acuity levels are entered into another table (Table VII) of the rating schedule to determine the percentage disability rating.  38 C.F.R. § 4.85.

The Veteran contends that his hearing loss has gotten worse and that he thought he had some nerve damage in his ears. 

At a November 2009 VA audiology evaluation, pure tone thresholds, in decibels, were as follows:


HERTZ
CNC
Level

1000
2000
3000
4000
Avg


RIGHT
55
60
60
65
60
88
IV
LEFT
60
65
65
65
64
76
V

Under Table VI the VA examinations result in Level III hearing acuity for the right ear and Level IV for the left ear at the most impaired.  However, the provisions of 38 C.F.R. § 4.86 pertaining to exceptional patterns of hearing loss apply as the threshold at each of the four frequencies is 55 decibels or more.  Therefore Table VIA may also be used if it results in a higher threshold average level.  Based on Table VIA the examination results in Level IV for the right ear and Level V in the left ear.  Applying the highest Roman numeral designations for each ear to Table VII (Level IV and V respectively) results in a 10 percent evaluation for hearing impairment at that time.  38 C.F.R. §§ 3.383, 4.85(h).  

In October 2011 the Veteran had a hearing test which found there to be moderate to moderately severe hearing loss with speech recognition scores of 72 percent.  Despite multiple requests, the audiogram of the examination was not available. 

At an October 2012 VA audiology evaluation, pure tone thresholds, in decibels, were as follows:


HERTZ
CNC
Level

1000
2000
3000
4000
Avg


RIGHT
60
65
70
70
66
54
VIII
LEFT
60
65
70
75
68
64
VII

Under Table VI the VA examinations result in Level VIII hearing acuity for the right ear and Level VII for the left ear at the most impaired.  Although the provisions of 38 C.F.R. § 4.86 pertaining to exceptional patterns of hearing loss apply as the threshold at each of the four frequencies is 55 decibels or more, using Table VIA does not result in a higher numeral level then Table VI and therefore it will not be used.  Applying the Roman numeral designations for each ear to Table VII results in a 40 percent evaluation for hearing impairment.  38 C.F.R. §§ 3.383, 4.85(h) (2011).  

In a March 2013 addendum the August 2012 audiologist reported that the Veteran is retired, that he has moderately severe to severe sensorineural hearing loss bilaterally with poor word understanding in both ears, noting that without amplification (hearing aids) conversation must be very loud to be understood.  The audiologist found that the Veteran's hearing loss alone will not interfere with his ability to obtain and or maintain substantially gainful employment and that with appropriate amplification (hearing aids), the Veteran should be able to communicate with others, except in the presence of excessive noise. 

Prior to August 20, 2012 there is no evidence to support a rating higher than 20 percent.  The November 2009 VA examination resulted in Level IV hearing acuity for the right ear and Level V for the left ear at the most impaired which results in a 10 percent evaluation for hearing impairment under 38 C.F.R. §§ 3.383, 4.85(h).  

Beginning August 20, 2012 there is no evidence to support a rating higher than 40 percent.  The August 2012 VA examination resulted in Level VIII hearing acuity in the right ear and Level VII hearing acuity in the left ear which results in a 40 percent evaluation for hearing impairment under 38 C.F.R. §§ 3.383, 4.85(h). 

The Veteran is competent to report his symptomatology, to include difficulty hearing speech particularly women's voices, and difficulty hearing due to ringing in his ears.  However his opinion that the ratings should be increased is outweighed by the audiological examinations conducted by medical professionals.

The preponderance of the evidence is against the claim; there is no doubt to be resolved; and staged ratings higher than 20 percent and 40 percent for bilateral hearing loss are not warranted.

Extraschedular

The Board has considered Mittleider v. West, 11 Vet. App. 181 (1998), holding that the benefit of the doubt applies to determinations of whether a symptom should be attributed to a service-connected condition.  The Veteran's service connected symptoms have been considered in connection with his claims for increased ratings for left elbow disability, ulnar neuropathy and scars. 

Extraschedular consideration involves a three step analysis.  Thun v. Peake, 22 Vet. App. 111 (2008).

First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology.  Id. At 115.  If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops.  Id.

If the schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization.  Id. At 116.

If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating.  Id.

The Veteran's complaints associated with bilateral hearing loss include difficulty hearing with any background noise, difficulty hearing women's voices, difficulty hearing from behind and an inability to distinguish the direction of a sound. 

The Board finds that the schedular rating criteria in this case is adequate to rate the Veteran's bilateral hearing loss. 

In the absence of evidence that the schedular rating criteria is inadequate to rate the Veteran's disability, the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1).  See also Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).


ORDER

A rating greater than 20 percent for bilateral hearing loss prior to August 20, 2012 is denied.

A rating greater than 40 percent for bilateral hearing loss beginning August 20, 2012 is denied. 




____________________________________________
MARK W. GREENSTREET
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs