Citation Nr: 1317537	
Decision Date: 05/29/13    Archive Date: 06/06/13

DOCKET NO.  12-29 914	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an initial disability rating for bilateral hearing loss, currently evaluated as 20 percent disabling.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A-L Evans, Associate Counsel






INTRODUCTION

The Veteran served on active duty from July 1954 to June 1956.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  

This case was previously before the Board in February 2013.  At that time, the Board remanded the case for further development.  The Board is satisfied as to the compliance with its remand directives.  See Stegall v. West, 11 Vet. App 268, 
271 (1998).

Please note 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).


FINDING OF FACT

The Veteran's service-connected bilateral hearing loss is most recently manifested by Level I hearing in the right ear and Level II hearing in the left ear.  


CONCLUSION OF LAW

The criteria for an initial disability rating for bilateral hearing loss in excess of 20 percent disabling have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.85, Diagnostic Code 6100(2012). 






REASONS AND BASES FOR FINDING AND CONCLUSION

I.  VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012).  

The VCAA notice, in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

The Veteran's claim for an increase rating arises from a disagreement with the initial evaluation that was assigned following the grant of service connection.  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). 

VA also has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service treatment records, pertinent treatment records, and providing an examination when necessary.  38 C.F.R. § 5103A; 38 C.F.R. § 3.159.  The Board finds that all relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issue has been obtained.  The Veteran's service, private, and VA treatment records have been obtained.  He has been provided with VA examinations and the April 2013, VA examiner described the functional effects caused by the Veteran's bilateral hearing loss.  Martinak v. Nicholson, 21 Vet. App.  447 (2007).  The Veteran has not indicated there are any additional records that VA should seek to obtain on his behalf.  

The Board finds that all necessary development has been accomplished, and appellate review does not therefore result in prejudice to the Veteran.  See Bernard v. Brown, 4Vet. App. 384 (1993).

II.  Relevant Laws and Regulations

Disability ratings are based on the average impairment of earning capacity established in the Schedule for Rating Disabilities.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 
4 (2012).  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 required for that rating.  Otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.

The Veteran contends that he is entitled to a higher initial compensable disability rating for bilateral hearing loss because the condition affects his ability to understand people when they are speaking to him.  He requested that his service-connected bilateral hearing loss, which is currently assigned a 20 percent disability rating under 38 C.F.R. § 4.85, Diagnostic Code 6100, be reevaluated.

In cases for which the evaluation of hearing loss is at issue, ratings range from non-compensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz).  To evaluate the degree of disability from service-connected defective hearing, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness.  38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100 (2012).  Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing.  See Lendenmann v. Principi, 
3 Vet. App. 345 (1992). 

An exceptional pattern of hearing impairment occurs when the puretone threshold 
at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is
55 decibels or more.  In that situation, the rating specialist will determine the roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral.  38 C.F.R. § 4.86(a) (2012).  Further, when the average puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  When only one ear is service connected, the non service connected ear is given Level I hearing loss.  38 C.F.R. § 4.86(b) (2012).  

Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average. Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of Section 4.86. 38 C.F.R. § 4.85 (c).

The Veteran was afforded an audiological evaluation in January 2010.  On that occasion,  pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
N/A
35
65
65
75
LEFT
N/A
45
60
55
65

Speech recognition scores were 72 percent in the right ear and 68 percent in the left ear.  Puretone threshold averages were 60 for the right ear and 56.25 for the left ear.  These findings correspond to Level V hearing in the right ear and Level V hearing in the left ear, which in turn corresponds to a 20 percent disability rating.  38 C.F.R. § 4.85, Tables VI and VII. 

The examination revealed that the Veteran had mild to severe hearing loss in his right ear.  In his left ear, the examiner found moderate to moderately severe hearing loss.  It was noted that the Veteran had trouble hearing when there was background noise.  

At a VA Compensation and Pension audiology examination in April 2013, puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
N/A
35
55
65
65
LEFT
N/A
50
65
60
70

Speech recognition scores were 92 percent in the right ear and 98 percent in the left ear.  Puretone threshold averages were 55 for the right ear and 61 for the left ear.  These findings correspond to Level I hearing in the right ear and Level II hearing in the left ear.  The results from this exam revealed a disability rating not in excess of 20 percent, ( and indeed, would warrant a non-compensable evaluation).  38 C.F.R. § 4.85, Tables VI and VII. 

The Board notes that the Veteran underwent a private audiological evaluation in December 2010, which included a word list test.  Significantly, the private report did not make clear whether or not the examination was conducted using Maryland CNC guidelines, as required by 38 C.F.R. §  4.85(a).  In this regard, under the applicable VA rating criteria, the private report does not include the necessary findings to appropriately evaluate the Veteran's hearing loss.  Therefore, the December 2010 audiogram report is inadequate for VA rating purposes.  

The VA examinations were conducted in accordance with 38 C.F.R. § 4.85(a), are highly probative, and the April 2013 VA examination shows improvement in the Veteran's service connected bilateral hearing loss.  Based on the results of the audiological evaluation, the criteria for a higher evaluation have not been met.  As such, a disability rating in excess of 20 percent is not warranted

In exceptional cases an extraschedular rating may be provided.  38 C.F.R.
§ 3.321.  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 
22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  

The Board finds that the rating criteria contemplate the Veteran's disability.  The Veteran's bilateral hearing loss disability is productive of decreased hearing acuity and this manifestation is contemplated in the rating criteria.  The rating criteria are therefore adequate to evaluate the Veteran's service-connected bilateral hearing loss disability and referral for consideration of extraschedular rating is not warranted.

The Court has held that entitlement to a TDIU is an element of all appeals for a higher rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Entitlement to a TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. As there is no evidence of unemployability due to the Veteran's hearing loss, the question of entitlement to a TDIU is not raised.

In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, supra; Gilbert v. Derwinski, supra.



ORDER

Entitlement to an initial disability rating in excess of 20 percent for bilateral hearing loss is denied. 


____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs