Citation Nr: 1317281	
Decision Date: 05/28/13    Archive Date: 06/06/13

DOCKET NO.  09-43 472	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to an initial compensable rating for bilateral hearing loss. 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A.M. Ivory, Counsel







INTRODUCTION

The Veteran had active military service from March 1984 to March 1988 and January 2004 to December 2004.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  

The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims.  A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal.
 

FINDING OF FACT

For the entire appeal period, the Veteran has no worse than Level II hearing in the right ear and Level I hearing in the left ear. 


CONCLUSION OF LAW

For the entire appeal period, the criteria for an initial compensable rating for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100, and Tables VI, VII (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

I.  VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  Proper VCAA notice must inform the claimant of any information and 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)(1).

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits.

The Board observes that the Veteran has appealed with respect to the propriety of the initially assigned rating for his bilateral hearing loss from the original grant of service connection.  VA's General Counsel has held that no VCAA notice is required for such downstream issues.  VAOPGCPREC 8-2003, 69 Fed. Reg. 25180  (May 5, 2004).  In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated."  Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006).  In this case, the Veteran's claim for service connection for bilateral hearing loss was granted and an initial rating was assigned in the June 2009 rating decision on appeal.  Therefore, as the Veteran has appealed with respect to the initially assigned rating, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

Relevant to the duty to assist, the Veteran's service treatment records and post-service VA treatment records have been obtained and considered.  The Veteran has not identified any additional, relevant records that have not been requested or obtained.  

Additionally, the Veteran was afforded a VA examination in March 2009 in conjunction with his claim.  Neither the Veteran nor his representative has alleged that such examination is inadequate for rating his service-bilateral hearing loss.  Furthermore, the Board finds that the examination is adequate as it includes an interview with the Veteran, a review of the record, and a full audiologic examination, addressing the relevant rating criteria.  Moreover, the Veteran has not alleged worsening since the March 2009 VA examination. In this regard, while he and his representative have claimed that his bilateral hearing loss is worse than the current noncompensable rating, they have not contended that the condition has increased in severity since the March 2009 VA examination.  Palczewski v. Nicholson, 21 Vet. App. 174   (2007) (mere passage of time not a basis for requiring of new examination);VAOPGCPREC 11-95.  

The Board notes that, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that, relevant to VA audiological examinations, 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.  In this regard, the Board finds that the March 2009 VA examiner addressed the functional effects resulting from the Veteran's bilateral hearing loss.  Specifically, with respect to the effect of his bilateral hearing loss on his occupational functioning and daily activities, the examiner noted that he had slight hearing difficulties.  While the examiner did not further explain such difficulties, the Court noted 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. at 456.  In the instant case, neither the Veteran nor his representative have alleged any prejudice resulting from any perceived deficiency in the examination.  Therefore, the Board finds that the March 2009 VA examination is adequate to adjudicate the Veteran's initial rating claim and no further examination is necessary.

Thus, the Board finds that VA has fully satisfied the duty to assist.  In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided).  VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding.  Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim.

II. Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The  Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 

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. All benefit of the doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3. 

Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate.  Fenderson v. West, 12 Vet. App. 119 (1999).

The June 2009 rating decision granted service connection for bilateral hearing loss and assigned an initial noncompensable rating, effective October 22, 2008.  The Veteran's hearing loss has been rated under 38 C.F.R. § 4.85, Diagnostic Code 6100.  The Veteran contends that his hearing disability is worse than the currently assigned evaluation.  Therefore, he alleges that he is entitled to an initial compensable rating for such disability.

Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second.  To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness.  38 C.F.R. § 4.85(h), Table VI.  In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met.  The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann, supra.

The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, Table VIA, in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule.  38 C.F.R. 
§ 4.85.  An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz  is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  38 C.F.R. § 4.86.

VA treatment records reflect that, at an October 2008 VA audiological consults, pure tone thresholds, in decibels, were as follows:  


HERTZ

500
1000
2000
3000
4000
AVG.
RIGHT
N/A
15
25
70
60
43
LEFT
N/A
15
20
80
75
48

The speech recognition score for the right ear was 88 percent and the left ear was 96 percent.  The examiner's impression was that the Veteran had bilateral frequency sensorineural hearing loss.  Such pure tone thresholds fail to demonstrate an exceptional pattern of hearing loss.  Therefore, the audiometry test results equate to Level II hearing in the right ear and Level I in the left ear using Table VI.  Applying the percentage ratings for hearing impairment found in Table VII, Level II hearing in the right ear and Level I hearing in the left ear results in noncompensable rating.  38 C.F.R. § 4.85. 
 
At the March 2009 VA audiological evaluation, the Veteran's audiometer scores were as follows:  


HERTZ

500
1000
2000
3000
4000
AVG.
RIGHT
N/A
15
20
70
65
43
LEFT
N/A
15
20
80
75
48

The speech recognition score for the right ear was 100 percent and the left ear was 96 percent.  The examiner diagnosed bilateral sensorineural hearing loss.  Such pure tone thresholds fail to demonstrate an exceptional pattern of hearing loss.  Therefore, the audiometry test results equate to Level I hearing in the right ear and Level I in the left ear using Table VI.  Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in the right ear and Level I hearing in the left ear results in noncompensable rating.  38 C.F.R. § 4.85.

Therefore, the Board finds that, for the entire appeal period, the Veteran has no worse than Level I hearing in the right ear and Level I hearing in the left ear.  As such, he is not entitled to an initial compensable rating for his bilateral hearing loss.

To the extent that the Veteran contends that his hearing loss is more severe than currently evaluated, the Board observes that the Veteran, while competent to report symptoms such as slight difficulty hearing, he is not competent to report that his hearing acuity is of sufficient severity to warrant a 10 percent or greater evaluation under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to have.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  

Despite the foregoing, the Board acknowledges the Veteran's reports of the slight difficulty he has hearing.  Even after considering such contentions as to the effects of the disability on his occupation and daily life, the Board finds that the criteria for a compensable rating are not met.  See Lendenmann, supra (assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered).  

The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected bilateral hearing loss; however, the Board finds that his symptomatology has been stable throughout the appeal period.  Therefore, assigning staged ratings for such disability is not warranted. 

Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration.  An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable.  38 C.F.R. § 3.321(b)(1).  

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied.  Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under 
§ 3.321 is a three-step inquiry.  First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.

Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization."  Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating.  Id.

The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected bilateral hearing loss with the established criteria found in the rating schedule.  In this regard, the Veteran has described the functional impairment of his bilateral hearing loss as resulting in only slight hearing difficulties and, moreover, the rating criteria contemplates the difficulty the Veteran has hearing in all situations.  Therefore, the Board finds that the Veteran's bilateral hearing loss symptomatology is fully addressed by the rating criteria under which his disability is rated.  There are no additional symptoms of his bilateral hearing loss that are not addressed by the rating schedule.  Throughout the pendency of the appeal, the Veteran's numeric designation assigned after each audiometric evaluation consistently demonstrates no more than Level II hearing impairment in the right ear and Level I hearing impairment in the left ear.  The Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology for his service-connected disability.  As such, the rating schedule is adequate to evaluate the Veteran's disability picture.  Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization.  Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted.  Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996).  

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record.  The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability.  Id.  In this case, the evidence does not show, and the Veteran has not alleged, that his bilateral hearing loss renders him unemployable.  Moreover, at hte March 2009 VA examination, the impact on his occupational functioning resulted in only slight hearing difficulties.  Therefore, the Board finds that the issue of entitlement to a TDIU is not expressly raised by the Veteran or reasonably raised by the record and, consequently, further consideration of such is not necessary.

The Board has also considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for an initial compensable rating for his bilateral hearing loss.  Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his initial rating claim must be denied.  38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7.  


ORDER

An initial rating for bilateral hearing loss is denied. 



____________________________________________
A. JAEGER
	Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs