Citation Nr: 1318254	
Decision Date: 06/05/13    Archive Date: 06/11/13

DOCKET NO.  11-26 537	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Columbia, South Carolina




THE ISSUE

Entitlement to an initial increased rating for the service-connected bilateral hearing loss, currently rated as noncompensable prior to August 10, 2011, and 10 percent beginning on that date.




REPRESENTATION

Appellant represented by:	The American Legion






ATTORNEY FOR THE BOARD

M. Mills, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1955 to August 1958.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2010 by the RO.

In an August 2010 rating decision, the RO granted service connection for bilateral hearing loss disability and assigned a not percent evaluation effective on April 13, 2010.

In May 2012, the Veteran presented testimony at a Decision Review Officer (DRO) hearing at the RO.  There was a problem with the transcription, and the transcript is therefore not of record.  

The Veteran was offered another hearing in correspondence dated in January 2013; however, no response was received, and the hearing request is considered satisfied.

In a January 2013 rating decision, the RO assigned a 10 percent rating to the bilateral hearing loss effective on August 10, 2011.  This increase during the appeal did not constitute a full grant of the benefit sought.  Therefore, the Veteran's claim for an increased evaluation for bilateral hearing loss remains on appeal.  See AB v. Brown, 6 Vet. App. 35, 39 (1993).  

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

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).


FINDINGS OF FACT

1.  Prior to August 10, 2011, the service-connected bilateral hearing loss disability is shown to have been productive of no more than a Level IV designation in the right ear and Level II designation on the left.

2.  Beginning on August 10, 2011, the service-connected bilateral hearing loss disability is shown to have been productive of a disability picture that more nearly approximated that of a Level VI designation in the right ear and Level V in the left. 


CONCLUSIONS OF LAW

1.  The criteria for the assignment of an initial compensable rating for the service-connected bilateral hearing loss disability prior to August 10, 2011, have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.85, 4.86 including Diagnostic Code 6100 (2012).

2.  The criteria for the assignment of an increased disability rating of 20 percent, but not higher for the service-connected bilateral hearing loss disability have been met beginning on August 10, 2011.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.85, 4.86 including Diagnostic Code 6100 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

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 C.F.R. § 3.159(b)(1).

This appeal arises from a notice of disagreement with the initial assignment of a disability rating following a grant of service connection.  As the August 2010 rating decision on appeal granted the Veteran's claim of entitlement to service connection for bilateral hearing loss, the claim is now substantiated.  As such, his filing of a notice of disagreement as to these determinations does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a).  

Under these circumstances, VA fulfilled its obligation to advise and assist the Veteran throughout the remainder of the administrative appeals process, and similarly accorded the Veteran a fair opportunity to prosecute the appeal.  See Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  

With regard to the duty to assist, the claims file contains service treatment records, reports of post-service treatment, and reports of VA examinations.  See 38 U.S.C.A. § 5103A(a)-(d).

In October 2011, the RO requested clarification from the private audiologists who conducted examinations in December 2010 and August 2011.  Responses were received in October 2011 and November 2011 clarifying the puretone threshold values and the type of audiological tests performed.

The Veteran was afforded VA examinations in July 2010 and November 2011.  The reports of these examinations reflect that the examiners conducted appropriate audiometric examinations and rendered appropriate diagnoses consistent with the remainder of the evidence of record and pertinent to the rating criteria.  

The Board additionally observes that all appropriate due process concerns have been satisfied.  See 38 C.F.R. § 3.103 (2012).  The Veteran has been accorded the opportunity to present evidence and argument in support of his claims.  

As addressed, the transcript from the Veteran's May 2012 DRO hearing is not of record, and the Veteran did not respond to a letter advising him of his option to reschedule the hearing.

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim.  

Essentially, all available evidence that could substantiate the claim has been obtained.  There is no indication in the file that there are additional relevant records that have not yet been obtained.  


II.  Analysis

Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability.  See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2011).  Separate diagnostic codes identify the various disabilities.  See 38 C.F.R. Part 4.  

The Court has held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

Assignments 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.  38 C.F.R. §§ 4.85, 4.86, Tables VI, VIA, VII. 

Audiometric evaluations are conducted using the controlled speech discrimination tests together with the results of the puretone audiometry test.  38 C.F.R. § 4.85(a). 

Numeric designations (I through XI) are assigned by application of Table VI, in which the percentage of discrimination is intersected with the puretone decibel loss.  38 C.F.R. § 4.85, Table VI.  The results are then applied to Table VII, for a percentage rating.  Id.  

"Puretone threshold average," as used in Tables VI and VIA, is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  This average is used in all cases (including those in § 4.86) to determine the Roman numeral designation for hearing impairment from Table VI or Table VIA.  38 C.F.R. § 4.85(d). 

Under 38 C.F.R. § 4.86, evaluation of veterans with certain patterns of exceptional hearing impairment is contemplated.  In the case where puretone thresholds are 55 decibels or more at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz), either Table VI or Table VIA is applied, and whichever results in the higher numeral shall be applied.  38 C.F.R. § 4.86(a). 

In addition, when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the higher numeral of Table VI or Table VIA is also applied.  38 C.F.R. § 4.86(b).



      A.  Prior to August 10, 2011

Staged ratings are currently in effect for the Veteran's bilateral hearing loss.  A noncompensable (no percent) rating has been assigned prior to August 10, 2011.

The record reflects that the Veteran underwent a VA audiological examination in July 2010 which yielded the following results:





HERTZ



500
1000
2000
3000
4000
RIGHT
N/A
50
65
75
65
LEFT
N/A
50
55
55
55

Speech discrimination scores were 82 in the right ear and 90 in the left ear.  The average puretone threshold was 64 decibels in the right ear and 54 decibels in the left ear.

Applying the schedular criteria, this examination report yielded a numerical designation of level IV in the right ear and level II for the left ear.  See 38 C.F.R. § 4.85, Table VI.  

When those values are applied to Table VII, a noncompensable disability evaluation is warranted for the service-connected bilateral hearing loss under the provisions of 38 C.F.R. § 4.85.  

These test results do not require consideration of exceptional patterns of hearing impairment under subsections (a) or (b) of 38 C.F.R. § 4.86 [thresholds of 55 or greater for all four Hertz frequencies, or 30 or less at the 1000 Hertz frequency and 70 or greater at the 2000 Hertz frequency].  

The Board notes that the claims file contains a December 2010 private evaluation that is based on audiological testing conducted at Easley Head & Neck Surgery.  

In response to an October 2011 letter from the RO, the private audiologist advised VA of the numerical values for the pure tone thresholds and indicated that Auditec of St. Louis and CID W-22 speech discrimination tests were used for testing.  

These testing results are inadequate for VA rating purposes because the audiologist did not use the Maryland CNC test as required by VA regulation.  38 C.F.R. § 3.85(a).  As a result, the Board will not consider the December 2010 Easley Head & Neck Surgery audiometric results in its analysis.


B.  Beginning on August 10, 2011

Beginning on August 10, 2011, the service-connected bilateral hearing loss has been rated as 10 percent disabling.

For the following reasons, the Board finds that an increased disability rating to 20 percent is warranted effective August 10, 2011.

In August 2011, a private audiological evaluation was performed at Clarity, Inc.  The audiologist indicated that the Maryland CNC test was used to provide speech discrimination scores.  However, the report did not provide puretone thresholds.  

The audiologist provided the puretone thresholds in response to an October 2011 letter from the RO.  The August 2011 examination yielded the following audiometric results:




HERTZ



500
1000
2000
3000
4000
RIGHT
N/A
55
70
80
75
LEFT
N/A
60
65
60
65

Speech discrimination scores were 76 in the right ear and 84 in the left ear.  The average puretone threshold was 70 decibels in the right ear and 63 decibels in the left ear.

Applying the schedular criteria, this examination report yielded a numerical designation of level IV in the right ear and level III for the left ear.  See 38 C.F.R. § 4.85, Table VI.  

When those values are applied to Table VII, the category designations result in a 10 percent rating under the provisions of 38 C.F.R. § 4.85.  

The Board had considered the application of exceptional patterns of hearing impairment.  

In this case, the Veteran's audiometric test results revealed puretone thresholds at the 1000, 2000, 3000, and 4000 Hertz of 55 decibels or greater in both ears.

Applying Table VIA to the August 2011 right ear audiometric test results yields a level VI designation and a level V designation for the Veteran's left ear.

After taking into consideration the exceptional patterns of hearing impairment, under Table VII, a 20 percent disability evaluation is warranted  See 38 C.F.R. § 4.86 (2012).

The Veteran was also afforded a VA audiological examination in November 2011.  This examination yielded the following audiometric results:




HERTZ



500
1000
2000
3000
4000
RIGHT
N/A
45
65
75
75
LEFT
N/A
45
55
50
50

Speech discrimination scores were 88 in the right ear and 92 in the left ear.  The average puretone threshold was 65 decibels in the right ear and 50 decibels in the left ear.

Applying the schedular criteria, this examination report yielded a numerical designation of level III in the right ear and level I for the left ear.  See 38 C.F.R. § 4.85, Table VI.  Entering those values into Table VII results in a 0 percent (noncompensable) rating under the provisions of 38 C.F.R. § 4.85.  

Exceptional patterns of hearing impairment were not demonstrated in the November 2011 VA audiological examination.

As the Veteran is competent to report that his hearing loss had increased in severity, the results of the August 2011 private audiological examination supported his assertion, the Board finds that the service-connected disability picture more nearly approximated the criteria warranting an increased rating of 20 percent beginning on the date of that examination.

Thus, on this record, the Board finds that the service-connected bilateral hearing loss disability should be rated as 20 percent disabling under Diagnostic Code 6100 beginning on August 11, 2011.


III.  Extraschedular Considerations

The Board has considered the provisions of 38 C.F.R. § 3.321(b)(1).  However, in this case, the Board finds that the record does not show that the service-connected bilateral hearing loss disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extraschedular basis.  See 38 C.F.R. § 3.321(b)(1). 

The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  See Thun v. Peake, 22 Vet. App. 111 (2008).  

In this regard, 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.  

If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required.  Id., see also VAOGCPREC 6-96 (Aug. 16, 1996).  

Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). 

The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate.  

A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology.  

As discussed, there are higher ratings available under the Rating Schedule, but the Veteran's disability is not productive of such manifestations.  Therefore, it cannot be said that the available schedular evaluation for the disability is inadequate. 

Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the service-connected bilateral hearing loss disability under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met.  Bagwell v. Brown, 9 Vet. App. 33 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008).


ORDER

An increased, compensable rating for the service-connected bilateral hearing loss disability prior to August 10, 2011, is denied.  

An increased rating of 20 percent, but no more for the service-connected bilateral hearing loss disability beginning on August 10, 2011, is granted, subject to the regulations controlling disbursement of VA monetary benefits.  



____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, 
Board of Veterans' Appeals



Department of Veterans Affairs