Citation Nr: 1318748	
Decision Date: 06/10/13    Archive Date: 06/21/13

DOCKET NO.  09-43 038	)	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

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

S. Higgs, Counsel




INTRODUCTION

The Veteran had active service from October 1963 to January 1968.    

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in August 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

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


FINDING OF FACT

The Veteran has manifested level I hearing in both of his ears.


CONCLUSION OF LAW

The criteria for a compensable initial disability rating for bilateral hearing loss disability are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

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).

In this case, the RO sent a letter to the Veteran in July 2008, prior to the initial adjudication of the claim for service connection.  That letter informed him of the evidence necessary to substantiate the claim for service connection for bilateral hearing loss and of the division of responsibilities in obtaining such evidence.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The letter also explained how disability ratings and effective dates are determined.   

The Veteran's claim for service connection was subsequently granted in an August 2008 rating decision.  This appeal arises from a May 2009 notice of disagreement with the assignment of an initial noncompensable (0 percent) rating for that disability.  In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id.  at 490-91. See also VAOPGCPREC 8-2003 (December 22, 2003).  Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify has been satisfied with respect to the issue of entitlement to a higher initial evaluation for his bilateral hearing loss. 

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).  

In this case, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available post-service medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim. 

In addition, the Veteran was afforded VA examinations in July 2008 and December 2011 in connection with his claim.  When VA undertakes to provide a VA examination or obtain a VA opinion, it should ensure that the examination or opinion is adequate.  There is no requirement that a medical examiner comment on every favorable piece of evidence in a claims file.  Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012); see Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners).  Examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion.  Monzingo, 26 Vet. App. at 105. 

The July 2008 and December 2011 VA audiological examinations and opinions provided in this matter are adequate.  The examination reports reflect an accurate review of the relevant history, contain all necessary findings for application of the relevant VA rating criteria, and include adequate explanations for all medical opinions provided.

In Martinak v. Nicholson, 21 Vet. App. 447 (2007) the United States Court of Appeals for Veterans Claims (Court) held that, 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. Martinak, 21 Vet. App. at 455.  In this case, the July 2008 VA examiner indicated that the Veteran's greatest difficulty was hearing speech in noise or groups.  The December 2011 VA examiner also noted that the Veteran's hearing loss impacted his ordinary conditions of daily life.  The Veteran had reported that he had difficulty understanding all words in conversation, especially in the presence of background noise.

Moreover, in Martinak, the Court noted that even if an audiologist's description of the functional effects of the appellant's hearing disability was somehow defective, the appellant bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  There have been no allegations of any prejudice caused by a deficiency in the examination here.  Indeed, the Veteran has been represented throughout the course of the appeal, yet the documents submitted do not contain any such assertion.

Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined.  38 C.F.R. § 3.327(a).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  VAOPGCPREC 11-95. 

Thus, there is adequate medical evidence of record to make a determination in this case.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met.  38 C.F.R. § 3.159(c)(4). 

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal, and 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 claims file that there are additional available relevant records that have not yet been obtained.


Law and 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. 38 C.F.R. § 4.7. 

In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 

Where a veteran appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999).  If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending). 

The Veteran's bilateral hearing loss is currently assigned a noncompensable evaluation pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. 

In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. Lindenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second.  The rating schedule establishes 11 auditory acuity Levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 

VA audiological evaluations are conducted using a controlled speech discrimination test together with the results of puretone audiometry tests.  The vertical line in Table VI (printed in 38 C.F.R. § 4.85) represents nine categories of the percentage of discrimination based on a controlled speech discrimination test. The horizontal columns in Table VI represent 9 categories of decibel loss based on the puretone audiometry test.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss.  The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity.  For example, if the better ear had a numeric designation of Level "V" and the poorer ear had a numeric designation of Level "VII" the percentage evaluation is 30 percent. See 38 C. F. R. § 4.85. 

Regulations also provide that, in cases of exceptional hearing loss, i.e., when the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 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(a).  The provisions of 38 C.F.R. § 4.86(b) further provide that, when the puretone threshold is 30 decibels or less at 1,000 hertz and 70 decibels or more at 2,000, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral.  That numeral will then be evaluated to the next higher Roman numeral.

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a higher initial evaluation for bilateral hearing loss.

At a July 2008 VA audiological examination, pure tone thresholds in the right ear were 10 decibels at 1000 hertz, 15 decibels at 2000 hertz, 25 decibels at 3000 hertz, and 55 decibels at 4000 hertz.  Pure tone thresholds in the left ear were 15 decibels at 1000 hertz, 25 decibels at 2000 hertz, 55 decibels at 3000 hertz, and 65 decibels at 4000 hertz.  The pure tone averages of the 1000, 2000, 3000, and 4000 hertz thresholds were noted to be 26.5 decibels in the right ear and 40 decibels in the left ear.  Speech recognition scores were 94 percent in the right ear and 94 percent in the left ear.  The July 2008 VA examiner indicated that the Veteran's greatest difficulty was hearing speech in noise or in groups.

The July 2008 VA audiometry findings equate to level I impairment in the right ear (94 percent speech discrimination and average puretone threshold of 26.5 decibels) and level I hearing impairment in the left ear (94 percent speech discrimination and average puretone threshold of 40 decibels).  See 38 C.F.R. §§ 4.85, Table VI.  When those values are applied to Table VII, it is apparent that the currently assigned noncompensable evaluation for the Veteran's bilateral hearing loss is accurate and appropriately reflects his bilateral hearing loss under the provisions of 38 C.F.R. § 4.85, Table VII.  Moreover, the Veteran does not have an exceptional pattern of hearing, as the examination findings do not reveal puretone thresholds of 55 decibels or more at each of the frequencies of 1,000, 2,000, 3,000 and 4,000 hertz or a puretone threshold of 30 decibels or less at 1,000 hertz and 70 decibels or more at 2,000 hertz. 38 C.F.R. § 4.86.

At a December 2011 VA audiological examination, pure tone thresholds in the right ear were 10 decibels at 1000 hertz, 10 decibels at 2000 hertz, 40 decibels at 3000 hertz, and 65 decibels at 4000 hertz.  Pure tone thresholds in the left ear were 20 decibels at 1000 hertz, 35 decibels at 2000 hertz, 65 decibels at 3000 hertz, and 70 decibels at 4000 hertz.  The pure tone averages of the 1000, 2000, 3000, and 4000 hertz thresholds were noted to be 31 decibels in the right ear and 48 decibels in the left ear.  Speech recognition scores were 100 percent in the right ear and 96 percent in the left ear.  The December 2011 VA examiner indicated that the Veteran's hearing loss impacted his ordinary conditions of daily life.  The Veteran reported having difficulty understanding all words in conversation, especially in the presence of background noise.

The December 2011 audiometry findings reflect level I hearing impairment in the right ear (100 percent speech discrimination and average puretone threshold of 31 decibels) and level I hearing impairment in the left ear (96 percent speech discrimination and average puretone threshold of 48 decibels).  See 38 C.F.R. §§ 4.85, Table VI.  When those values are applied to Table VII, it is apparent that the currently assigned noncompensable evaluation for the Veteran's bilateral hearing loss is accurate and appropriately reflects his bilateral hearing loss under the provisions of 38 C.F.R. § 4.85, Table VII.  Moreover, the Veteran does not have an exceptional pattern of hearing, as the December 2011 VA examination findings do not reveal puretone thresholds of 55 decibels or more at each of the frequencies of 1,000, 2,000, 3,000 and 4,000 hertz or a puretone threshold of 30 decibels or less at 1,000 hertz and 70 decibels or more at 2,000 hertz. 38 C.F.R. § 4.86.

As the VA examination reports are based on all of necessary rating criteria and on an accurate history, they are of a high probative value and weight.  There is no probative evidence otherwise showing that a compensable evaluation is warranted under the schedular rating criteria.  As a result, the preponderance of the evidence is against assignment of a compensable initial rating for a bilateral hearing loss disability, and the Veteran's claim is denied.  The benefit of the doubt rule is not for application in resolution of this appeal.  See generally Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  In particular, 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 Veteran's bilateral hearing loss is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular 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.  The July 2008 VA examiner indicated that the Veteran's greatest difficulty was in hearing speech in noise or in groups, and the VA December 2011 examiner noted the Veteran's description of difficulty understanding all words in conversation, especially in the presence of background noise.  There is no indication that these are atypical manifestations of hearing loss.  Some level of symptomatology in the form of loss of hearing acuity is anticipated in the fact that the Veteran has been granted service connection for a bilateral hearing loss.  See generally 38 C.F.R. § 3.385 (disability due to impaired hearing).  As discussed above, there are higher ratings available under the diagnostic code, but the Veteran's disability is not productive of such impairment.

Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected bilateral hearing loss under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met.  Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008).


ORDER

Entitlement to a compensable initial rating for bilateral hearing loss is denied.




____________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs