Citation Nr: 1317680	
Decision Date: 05/30/13    Archive Date: 06/06/13

DOCKET NO.  10-38 064	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUE

Entitlement to a rating in excess of 20 percent for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Veteran and daughter


ATTORNEY FOR THE BOARD

L. A. Rein, Counsel


INTRODUCTION

The Veteran had active service from May 1960 to May 1962.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.

In May 2011, the Veteran and his daughter testified during a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.

In March 2012, the Board remanded this matter for additional development.

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

The Veteran's service-connected bilateral hearing loss has been manifested by hearing impairment during the entire appeal period no worse than level II in the right ear and level XI in the left ear.


CONCLUSION OF LAW

The criteria for a rating in excess of 20 percent for bilateral hearing loss have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012).




REASONS AND BASES FOR FINDINGS AND CONCLUSION

Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim.  The notice 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.  38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice.  Shinseki v. Sanders, 129 S.Ct. 1696 (2009).

The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice.  The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Specifically, the Veteran was notified in an October 2009 letter.

The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim.  Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim).  

Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent March 2013 supplemental statement of the case.  Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless).   

The Board also finds that the duty to assist requirements have been fulfilled.  All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained.  The appellant has not referred to any additional, unobtained, relevant, available evidence.  VA has obtained an April 2012 examination with respect to the claim on appeal.  The Board finds that VA's April 2012 examination report is adequate for rating purposes because the examiner conducted clinical evaluations, reviewed the Veteran's medical history, and described the hearing loss disability in sufficient detail so that the Board's evaluation is an informed determination.  Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 

Even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow defective in describing the effects of hearing loss on occupational functioning and daily activities, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  Martinak v. Nicholson, 21 Vet. App. 447 (2007).  The Veteran's statements regarding the functional effects of his disability are included in the record and were reviewed by the examiners in conjunction with the examination.  Thus, the Board finds that the examination was adequate.  Therefore, the Board finds that VA has satisfied the duty to assist provisions of law.  No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012).  When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating applies.  38 C.F.R. § 4.7 (2012). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2012). 

The Veteran's entire history is to be considered when assigning disability rating.  38 C.F.R. § 4.1 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

The Veteran's service-connected bilateral hearing loss disability is currently rated 20 percent disabling under 38 C.F.R. § 4.85,  Diagnostic Code 6100 (2012).  He contends that his bilateral hearing loss disability is more severe than rated.

Ratings for hearing loss are determined in accordance with the findings obtained on audiometric evaluations.  Ratings for hearing impairment range from 0 percent 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 as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per second.  To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness.  38 C.F.R. § 4.85, Diagnostic Code 6100 (2012).

Hearing tests will be conducted without hearing aids, and the results of testing are charted on Table VI and Table VII.  38 C.F.R. § 4.85, Tables VI, VII (2012).

Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86 (2012).  When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 hertz) is 55 decibels or more, 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.  Each ear will be evaluated separately.  38 C.F.R. § 4.86 (2012).

When the pure tone 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.  Each ear will be evaluated separately.  38 C.F.R. § 4.86 (2012).

An adequate evaluation of impairment of hearing acuity rests upon the results of controlled speech discrimination tests, together with tests of the average hearing threshold levels at certain specified frequencies.  38 C.F.R. § 4.85, Diagnostic Code 6100 (2012).

The assignment of disability ratings for hearing impairment are 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 pertinent evidence includes the Veteran's testimony from the May 2011 video conference hearing before the undersigned in which he asserted that due to his bilateral hearing loss disability he struggled to hear people.   He stated that he had to look at people directly to see what they were saying.  

VA medical records from February 2008 through December 2012 are negative for complaints, findings, or treatment pertaining to hearing loss.  Several records during that period note no change in regards to his hearing.  

An April 2012 VA audiology evaluation revealed bilateral sensorineural hearing loss.  On audiometric testing, pure tone thresholds, in decibels, were reported as follows: 



HERTZ



1000
2000
3000
4000
AVG
RIGHT
30
55
75
80
60
LEFT
70
105+
105+
105+
96

Speech discrimination scores on the Maryland CNC word list were 92 percent in the right ear and 26 percent in the left ear.  

The VA audiologist indicated that the Veteran's bilateral hearing loss impacted ordinary conditions of daily living, including the ability to work.  The Veteran stated that the affect of his hearing loss on his daily life was that he had problems understanding speech.  He founds his hearing loss "depressing, but not devastating," as he frequently made people repeat what they had already said.  The Veteran stated that he was not seeking employment, so his hearing loss did not affect his ability to work.  The Veteran was retired.  

Applying the method for evaluating hearing loss to the results of the Veteran's audiology evaluation, the April 2012 audiometric evaluation reveals Level II hearing acuity in the right ear, and Level XI hearing acuity in the left ear using Table VI.  Application of these findings to Table VII corresponds to a 10 percent rating under 38 C.F.R. § 4.85, Diagnostic Code 6100.

However, as the pure tone threshold at each of the four specified frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz was 55 decibels or more in the left ear, the Veteran qualified for consideration under both Table VI and Table VIa for the left ear, which is reserved for consideration in cases of exceptional patterns of hearing loss.  Applying the above left ear values to Table VIa results in a numeric designation of IX.  That application of values to Table VIa does not result in a better benefit.  The result is the same.  Application of the levels of hearing impairment in each ear to Table VII produces a 10 percent disability rating.  38 C.F.R. §§ 4.85, 4.86 (2012).

In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report because of the potential application of 38 C.F.R. § 3.321(b) in considering whether referral for an extra-schedular rating is warranted.  Unlike the rating schedule for hearing loss, § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extra-schedular rating is warranted.  Martinak v. Nicholson, 21 Vet. App. 447 (2007).

The April 2012 VA examiner specifically set forth the functional effects of the Veteran's hearing disability, including a finding that the Veteran's bilateral hearing loss impacted ordinary conditions of daily living, including the ability to work.  It was further indicated that the Veteran provided that the affect of his hearing loss on his daily life was that he had problems understanding speech.  He found his hearing loss "depressing, but not devastating," as he frequently made people repeat what they had already said.  The Veteran stated that he was not seeking employment.  He was retired, so his hearing loss did not affect his ability to work.  The Board finds that the record contains the type of evidence regarding functional impact required.

The Board has also considered the statements made by the Veteran during his Board hearing and written statements associated with the record in which he asserted that his hearing loss disability has increased in severity and that he must frequently ask people to repeat what they are saying.  A Veteran is competent to describe symptoms of which he has first-hand knowledge.  Charles v. Principi, 16 Vet. App. 370 (2002); Washington v. Nicholson, 19 Vet. App. 362 (2005).  As the Board finds that hearing loss and its symptomatology are something that the Veteran, as a layperson, is competent to describe, his statements carry probative weight.  Barr v. Nicholson, 21 Vet. App. 303 (2007); Falzone v. Brown, 8 Vet. App. 398 (1995).

However, the Board is bound in its decisions by the VA regulations for the rating of hearing loss.  38 U.S.C.A. § 7104(c) (West 2002).  Rating hearing loss requires the use of the Maryland CNC speech discrimination test and the pure tone threshold average determined by an audiometry test.  The Board in no way discounts the difficulties that the Veteran experiences as a result of his bilateral hearing loss, and finds his testimony that his hearing impairment has worsened over the years to be credible.  However, disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric evaluations; the Board has no discretion in the matter.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).  The Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012).

In addition, the Board notes that there is no evidence of an exceptional or unusual disability picture with related factors, such as marked interference with employment or frequent periods of hospitalization, so as to warrant referral of the case to appropriate VA officials for consideration of an extra schedular rating.  38 C.F.R. § 3.321(b)(1) (2012); Shipwash v. Brown, 8 Vet. App. 218 (1995).  The record does not show that the Veteran has been hospitalized for his service-connected bilateral hearing loss.  There is no objective evidence showing that his condition caused marked interference with employment beyond that anticipated by the assigned rating.  The rating criteria reasonably describe the Veteran 's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence.  Therefore, his disability picture for his bilateral hearing loss is contemplated by the rating schedule, and the assigned schedular rating is adequate.  Thun v. Peake, 22 Vet. App. 111 (2008) (the threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the schedular rating is inadequate).

The Board is sympathetic to the Veteran's position that a higher rating is warranted for his service-connected bilateral hearing loss.  However, the audiometric examination results, as compared to the rating criteria, do not warrant a higher rating for hearing loss during any period on appeal.  Accordingly, the Board finds that the preponderance of the evidence is against the claim for a rating in excess of 20 percent for bilateral hearing loss, and the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 


ORDER

Entitlement to a rating in excess of 20 percent for bilateral hearing loss is denied.



____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs