Citation Nr: 1315507	
Decision Date: 05/10/13    Archive Date: 05/15/13

DOCKET NO.  12-22 086	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska



THE ISSUE

Entitlement to a compensable rating for bilateral hearing loss.



ATTORNEY FOR THE BOARD

L. Zobrist, Associate Counsel










INTRODUCTION

The appellant is a Veteran who served on active duty from July 1966 to July 1970.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Lincoln, Nebraska, Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for bilateral hearing loss, rated 0 percent, effective February 4, 2011 (date of claim).  


FINDING OF FACT

At no time during the appeal period is the Veteran's hearing acuity shown to have been worse than Level I in the left ear or Level II in the right ear.


CONCLUSION OF LAW

A compensable rating for bilateral hearing loss is not warranted.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.85, Diagnostic Code (Code) 6100, 4.86 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  

As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  A July 2012 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an increased rating; while a September 2012 supplemental SOC (SSOC) readjudicated the matter after the appellant and his representative responded and further development was completed.  38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006).  Notably, a February 2011 letter also provided him with general disability rating and effective date criteria.  The Veteran has had ample opportunity to respond/supplement the record.  He has not alleged that notice in this case was less than adequate.  See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) ( "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error).

The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured.  The RO arranged for VA examination in June 2011, March 2012, and August 2012.  These examinations are adequate for rating purposes as the examiners obtained a reported history from the Veteran, conducted thorough examinations, and noted the functional loss due to the hearing loss disability.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes).  The June 2011 and August 2012 VA examinations included audiometric studies.  The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary.  See generally 38 C.F.R. § 3.159(c)(4).  While the record suggests that the Veteran has seen a private audiologist,  the Veteran has not identified any such provider as having records pertinent to his claim, or identified any pertinent evidence that remains outstanding..  VA's duty to assist is met.  Accordingly, the Board will address the merits of the claim. 

Legal Criteria, Factual Background, and Analysis

The Board has reviewed all the evidence in the Veteran's claims file, and in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to the matter on appeal.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that each item of evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).

Ratings for hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denotes essentially normal acuity and Level XI denotes profound deafness.  The assignment of the appropriate numeric level is based on the results of a controlled speech discrimination test (Maryland CNC test) in combination with the claimant's average puretone thresholds.  The average threshold is obtained from puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz.  38 C.F.R. § 4.85.

Rating specialists use either Table VI or VIA of 38 C.F.R. § 4.85 to determine the correct Roman numeral designation.  Table VIA is employed when the use of speech discrimination tests is inappropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (as defined in 38 C.F.R. § 4.86).  One such pattern occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000) is 55 decibels or more.  38 C.F.R. § 4.86(a).  Another pattern occurs when the puretone threshold at 1000 Hertz is 30 decibels or less and the puretone threshold at 2000 Hertz is 70 decibels or more.  38 C.F.R. § 4.86(b).

Where (as here) the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings."  See Fenderson v. West, 12 Vet. App. 119 (1999).  As the current 0 percent rating assigned for the Veteran's bilateral hearing loss encompasses the greatest level of hearing impairment shown at any time during the appeal period, "staged ratings" are not warranted.

The Veteran's claim seeking service connection for bilateral hearing loss was received on February 4, 2011.  He underwent three VA audiological evaluations suitable for rating purposes since the filing of the claim.  On June 2011 audiological evaluation, audiometry revealed that puretone thresholds, in decibels, were:




HERTZ



1000
2000
3000
4000
Average
RIGHT
45
55
55
50
51.25
LEFT
35
55
55
60
51.25

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 percent in the left ear.  Normal to moderate sensorineural hearing loss in both ears was diagnosed.  The examiner opined that there were no significant functional effects resulting from the Veteran's bilateral hearing loss and that the hearing loss was not due to military noise exposure.

Under Table VI, the right ear puretone threshold average of 51.25 decibels and speech discrimination of 96 percent constitute Level I hearing in that ear.  The left ear puretone threshold average of 51.25 decibels and speech discrimination of 94 percent constitute Level I hearing in that ear.  The audiometry does not reflect an exceptional pattern of hearing impairment in either ear.

Under Table VII, the Level I hearing acuity found in the right ear, combined with the Level I hearing acuity found in the left ear, warrants a 0 percent rating under Code 6100.

On March 2012 VA examination, the examiner relied on the same February 2011 audiometric data but, based on her review of the Veteran's claims file, concluded that the Veteran's hearing loss was at least as likely as not related to his military service; subsequently, service connection for hearing loss was granted.
The Veteran's August 2012 VA Form 9, substantive appeal, argues that his hearing loss warrants a compensable rating because he cannot function at work, or in his personal life, without hearing aids.  Accordingly, VA arranged for another audiological evaluation, which was conducted that same month.  Audiometry on this evaluation found that puretone thresholds, in decibels, were:




HERTZ



1000
2000
3000
4000
Average
RIGHT
40
60
55
55
52
LEFT
40
55
55
60
52

Speech audiometry revealed speech recognition ability of 86 percent in the right ear and of 92 percent in the left ear.  The VA examiner interviewed the Veteran regarding the effects of hearing loss on occupational functioning and daily activities and noted that the Veteran wears hearing aids, has difficulty hearing in noisy situations, and has trouble hearing the television.  The examiner also noted that, while the Veteran was currently unemployed, he had worked in offices and had an interview the next day for a project manager job; the report does not indicate (or suggest) that the Veteran is unemployable due to his bilateral hearing loss.

Under Table VI, the right ear puretone threshold average of 52 decibels and speech discrimination of 86 percent constitute Level II hearing in that ear.  The left ear puretone threshold average of 52 decibels and speech discrimination of 92 percent constitutes Level I hearing in that ear.  The audiometry does not reflect an exceptional pattern of hearing impairment in either ear.  Under Table VII, the Level II hearing acuity found in the right ear, combined with the Level I hearing acuity found in the left ear, warrants a 0 percent rating under Code 6100.  The Veteran's use of hearing aids is evidence that he has impaired hearing; however, such alone does not establish that the hearing loss disability has risen to a compensable level (or provide a basis for an increased rating).

The Board finds that the June 2011 and August 2012 VA examinations are adequate as the examiners elicited pertinent history, reviewed the record, conducted a thorough examination with explanation of all findings, and commented on the expected impact of the hearing loss on the Veteran's everyday and occupational functioning. 

Regarding the Veteran's assertion that he cannot work without his hearing aids, as was noted above, the rating of hearing loss disability involves the mechanical application of the rating schedule to findings of controlled audiometry, which here results in a 0 percent rating.  See Lendenmann, 3 Vet. App. at 349.  Furthermore, testing for hearing loss is done without the Veteran's use of hearing aids.

The Board has considered whether referral for extraschedular consideration is indicated.  The evidentiary record does not show any manifestations of, or functional impairment due to, the Veteran's bilateral hearing loss and not encompassed by the criteria for the schedular rating assigned.  The functional loss noted on the June 2011 and August 2012 VA audiological examinations (difficulty hearing in certain occupational situations and with certain daily activities) is fully contemplated by the schedular criteria.  The Board finds that the schedular criteria clearly encompass the symptoms and impairment shown and are not inadequate, and that therefore referral for extraschedular consideration is not warranted.  See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008).  There is no evidence (or allegation) that the Veteran's  bilateral hearing loss renders him unemployable.  Hence, the matter of entitlement to a total disability rating based on individual unemployability is not raised by the record.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  The preponderance of the evidence is against this claim; therefore, the appeal in the matter must be denied.


ORDER

A compensable rating for bilateral hearing loss is denied.


____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs