Citation Nr: 1316443	
Decision Date: 05/20/13    Archive Date: 05/29/13

DOCKET NO.  08-20 794	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, Idaho


THE ISSUE

Entitlement to an initial compensable evaluation for bilateral hearing loss.


REPRESENTATION

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


ATTORNEY FOR THE BOARD

J. Juliano, Counsel

INTRODUCTION

The Veteran served on active duty from October 1969 to September 1972, and from June 1974 to July 1979.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Boise, Idaho.

By way of background, the October 2007 rating decision granted service connection for left ear hearing loss and assigned a noncompensable rating, effective October 27, 2006.  The October 2007 rating decision also denied service connection for right ear hearing loss.  The Veteran appealed to the Board.  An August 2010 Board decision granted service connection for the Veteran's right ear hearing loss, and remanded the issue of entitlement to a higher rating for bilateral hearing loss for further development, to include for a new VA examination.  Such development has been completed and associated with the claims file, and these matters are returned to the Board for further review.  As hearing loss is now service-connected for both ears, and further as the disability is rated based on bilateral hearing loss, it is appropriate to consider the Veteran's disability rating for the combined loss, as opposed to one ear versus the other.  The Veteran is not prejudiced by the Board rating the Veteran's hearing loss bilaterally herein.

On his substantive appeal, the Veteran requested a Board hearing.  Subsequently, in August 2009, the Veteran submitted a written request to withdraw his hearing request.  Based thereon, the Veteran's request for a Board hearing is considered withdrawn.







FINDINGS OF FACT

1.  On VA examinations in September 2006 and August 2007, the Veteran had level I hearing bilaterally.

2.  On VA examination in January 2011, the Veteran had level I hearing in the right ear and level II hearing in the left ear.

3.  Throughout the appeal, the Veteran has had difficulty hearing conversations, particularly during family gatherings and with background noise, and has experienced sensitivity to loud sounds.


CONCLUSION OF LAW

The criteria for a compensable evaluation for bilateral hearing loss are not met at any time during the appeal.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA)

With regard to the Veteran's claim for a higher initial evaluation for his bilateral hearing loss, 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 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).  The 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.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).

With regard to the Veteran's claim for a higher initial rating for his service-connected bilateral hearing loss, 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.  As such, 38 U.S.C.A. § 5103(a) notice is no longer required since the purpose that the notice was intended to serve has been fulfilled.  Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice.  Therefore, any defect as to 38 U.S.C.A. § 5103(a) notice is nonprejudicial.  See Dingess v. Nicholson, 19 Vet. App. 473, 490-491 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (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 any downstream elements).

The Board also concludes that VA's duty to assist has been satisfied.  The Veteran's VA and private treatment records are all in the claims file.  The Veteran has at no time referenced outstanding records that he wanted VA to obtain.

VA's duty to assist includes the duty to conduct a thorough and contemporaneous examination of the Veteran.  Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Where the evidence of record does not reflect the current state of a veteran's disability, a VA examination must be conducted.  See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991); 38 C.F.R. § 3.327(a) (2012).

The Veteran was provided with VA examinations in September 2006, August 2007, and most recently in January 2011 pursuant to the Board's August 2010 remand.  There is no objective evidence indicating that there has been a material change in the severity of the Veteran's hearing loss since the time of the last VA examination.  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. VAOPGCPREC 11-95.  The Board finds that the September 2006, August 2007, and January 2011 VA auditory examinations to be thorough and adequate upon which to base a decision with regard to the Veteran's claim.  The VA examiners personally interviewed and examined the Veteran and provided the information necessary to evaluate the Veteran's hearing loss disability under the applicable rating criteria.  In that regard, therefore, the Board also finds that the January 2011 VA examination report substantially complies with the Board's remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998).

The Board also acknowledges that the Veteran's representative argued in his May 2010 brief that the recent January 2011 VA examination pure tone thresholds ("audio decibel losses") are "disconnected" from the Veteran's description of his symptoms.  The Board, however, finds this assertion to be not credible, as in the first instance, the Veteran's representative is not an audiologist or any other medical professional, and secondly, as shown below, the January 2011 VA examination results are consistent with the prior two examinations in 2006 and 2007.  Furthermore, there is no great deviation in the Veteran's reported symptomatology from the recent past when the 2006 and 2007 examinations were conducted.  Therefore, the Board finds that another remand for another VA examination is not required.

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).



II.  Analysis

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports a claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the 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 the residual conditions in civilian occupations.  Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012).  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).  Any reasonable doubt regarding the degree of disability will be resolved in favor of a veteran.  38 C.F.R. § 4.3 (2012).

A veteran's entire history is reviewed when making a disability determination.  38 C.F.R. § 4.1 (2012).  When a veteran timely appeals an initial rating for a service-connected disability within one year of the rating decision, VA must consider whether the veteran is entitled to "staged" ratings to compensate him for periods of time since the filing of his claim when his disability may have been more severe than others.  Fenderson v. West, 12 Vet. App. 119 (1999).  

The Veteran's bilateral hearing loss is currently rated at the noncompensable level, effective October 27, 2006.  See 38 C.F.R. § 4.85.  He seeks a higher initial rating through this appeal.

Evaluations of defective hearing range from noncompensable to 100 percent.  This is 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 audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz.  To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness.  38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100 (2012).  

When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral, to determine the Roman numeral designation for hearing impairment.  38 C.F.R. § 4.86(a) (2012).  Additionally, when the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 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) (2012).

The September 2006 VA audiological examination report reflects pure tone thresholds as follows:



Hertz (decibels)

1000
2000
3000
4000
Avg.
RIGHT
5
10
45
45
26.25
LEFT
5
15
40
40
25

Speech recognition ability (using Maryland CNC word lists) was measured as 96 percent bilaterally.  Using Table VI of 38 C.F.R. § 4.85, these audiological testing results correlate to level I hearing bilaterally.  Using Table VII (Diagnostic Code 6100) of 38 C.F.R. § 4.85, the combination of level I bilaterally corresponds to a noncompensable rating.

The August 2007 VA audiological examination report reflects pure tone thresholds as follows:



Hertz (decibels)

1000
2000
3000
4000
Avg.
RIGHT
5
15
45
40
26.25
LEFT
10
15
55
40
30

Speech recognition ability (using Maryland CNC word lists) was measured as 100 percent bilaterally.  Using Table VI of 38 C.F.R. § 4.85, these audiological testing results correlate to level I hearing bilaterally.  Using Table VII (Diagnostic Code 6100) of 38 C.F.R. § 4.85, the combination of level I bilaterally corresponds to a noncompensable rating.

The January 2011 VA audiological examination report (QTC) reflects pure tone thresholds as follows:



Hertz (decibels)

1000
2000
3000
4000
Avg.
RIGHT
10
30
45
50
33.75
LEFT
10
30
50
55
36.25

Speech recognition ability (using Maryland CNC word lists) was measured as 96 percent in the right ear and 88 percent in the left ear.  Using Table VI of 38 C.F.R. § 4.85, these audiological testing results correlate to level I hearing in the right ear and level II hearing in the left ear.  Using Table VII (Diagnostic Code 6100) of 38 C.F.R. § 4.85, the combination of level I hearing in one ear and level II in the other corresponds to a noncompensable rating.
Pertinent case law provides that the assignment of disability ratings for hearing impairment is to be derived by the mechanical application of the ratings schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992).  The use of the controlled Maryland CNC speech discrimination test and the puretone threshold average determined by an audiometry test was established by regulation and published in the Federal Register on November 18, 1987. See 52 Fed. Reg. 44,117. 

In Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the Court of Appeals for Veterans Claims held that audiometric testing in a sound controlled room is an adequate testing ground for rating purposes, so long as the examiner adequately explores the functional impact of hearing loss on the Veteran.  The VA examination reports of record here included information concerning how the Veteran's hearing loss affects his daily functioning.  Specifically, the Veteran reported that his hearing loss impacted his daily life, particularly interacting with his family.  The Board acknowledges that the Veteran has not worked since the 1990s, although the medical evidence of record uniformly reflects that this relates to his back disability and resultant pain.  While the Board is sympathetic to the Veteran's hearing difficulties, ratings for hearing loss must be determined by mechanical application of the rating criteria.  

Accordingly, the preponderance of the evidence is against the Veteran's claim for a compensable evaluation for bilateral hearing loss on a schedular basis.

Finally, there is no evidence showing that an increase would be warranted on an extraschedular basis for his bilateral hearing loss.  Specifically, there is no evidence showing an exceptional or unusual disability picture as would render impractical the application of the regular schedular rating standards for hearing loss. See 38 C.F.R. § 3.321 (2012).  The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate.  Thun v. Peake, 22 Vet. App. 111 (2008); Fisher v. Principi, 4 Vet. App. 57, 60 (1993); 38 C.F.R. § 3.321(b)(1) (2012).  If so, factors for consideration in determining whether referral for an extraschedular rating is necessary include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable.  Thun, citing 38 C.F.R. § 3.321(b)(1) (2012).

The regulations that designate decibel loss and speech discrimination for each level of hearing impairment in Tables VI and VIa were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability.  In support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86.  In this regard, the rating criteria for hearing loss were last revised, effective June 10, 1999.  See 64 Fed. Reg. 25206 (May 11, 1999).  In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids.  VHA had found through clinical studies of veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment.  Accordingly, a different table of decibel threshold requirements was established (i.e., Table VIA), with the intended effect to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting.  59 Fed. Reg. 17295 (April 12, 1994).  Those certain patterns of impairment are specifically laid out in the schedule, and this Veteran's hearing thresholds do not qualify.  Accordingly, the Board finds that functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria.  Thus, the Board finds that the schedular rating criteria adequately contemplate the Veteran's symptomatology, and that a remand to the RO for referral of this issue to the VA Central Office for consideration of an extraschedular evaluation is not warranted.

The Board has also considered whether staged ratings are necessary during the appeal period.  However, based on the facts found, the current noncompensable rating is appropriate for the entire period.  See Fenderson v. West, supra.  

In sum, the preponderance of the evidence is against the Veteran's claim for a compensable evaluation for bilateral hearing loss; the benefit of the doubt rule is not for application.  


ORDER

Entitlement to a compensable evaluation for bilateral hearing loss is denied.



______________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs