Citation Nr: 1318923	
Decision Date: 06/11/13    Archive Date: 06/21/13

DOCKET NO.  11-16 703	)	DATE
	)
	)

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


THE ISSUE

Entitlement to an initial compensable disability rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

David Gratz, Counsel


INTRODUCTION

The Veteran served on active duty from November 1943 to April 1946.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for the Veteran's bilateral hearing loss and assigned a noncompensable rating.

The Veteran originally requested a videoconference hearing in his May 2011 substantive appeal; however, in statements dated February 2013 and March 2013, the Veteran withdrew his request for a hearing before the Board.  The hearing request is therefore deemed withdrawn.  38 C.F.R. § 20.704(e).

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 bilateral ear hearing loss is manifested by no more than Level I for the right ear and Level II for the left ear.


CONCLUSION OF LAW

The criteria for an initial compensable evaluation for bilateral hearing loss are not met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.85, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

Duties to Notify and Assist

This claim arises from a disagreement with the initial disability rating that was assigned following the grant of service connection for bilateral hearing loss.  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 him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained.  

The Veteran was provided with an adequate VA examination in connection with his present claim in May 2010.  While he has reported that his hearing loss is more disabling than the noncompensable rating throughout the appellate period, he has not indicated, and the evidence does not show, that his hearing loss has worsened since the May 2010 VA examination.  Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination).  He has not stated that there are any additional records that VA should seek to obtain on his behalf.  Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required.

Analysis

The Veteran contends in his May 2010 notice of disagreement that he is entitled to a compensable disability evaluation for his bilateral hearing loss.

Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4.  The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations.  38 U.S.C.A. § 1155.  The disability must be viewed in relation to its history.  38 C.F.R. § 4.1.  A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation.  38 C.F.R. § 4.7.  Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged ratings" is required.  Fenderson v. West 12 Vet. App. 119, 126 (1999).

The Veteran's hearing loss has been evaluated under 38 C.F.R. § 4.85, DC 6100.  This diagnostic code sets out the criteria for evaluating hearing impairment using pure tone threshold averages and speech discrimination scores.  Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  

Audiometric results are matched against Table VI to find the numeric designation, then the designations are matched with Table VII to find the percentage evaluation to be assigned for the hearing impairment.  To evaluate the degree of disability for service-connected hearing loss, the Rating Schedule establishes 11 auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness.  38 C.F.R. § 4.85.  When impaired hearing is service connected in one ear only, the non-service-connected ear will be assigned a designation of level I from Table VII.  38 C.F.R. § 4.85(f).  

The provisions of section 4.86 address exceptional patterns of hearing loss, which are defined as when each of the pure tone thresholds at 1000, 2000, 3000, and 4000 hertz (Hz) are 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz.  38 C.F.R. § 4.86.  These provisions are inapplicable in this case.

The Veteran submitted a one-page audiogram with his March 2010 claim for service connection for bilateral hearing loss.  The audiogram contains neither the date of examination nor the name or address of the clinician who administered it.  Moreover, the Veteran has not identified the provenance of the audiogram, and he specifically requested a compensation and pension examination with his claim.  In the absence of any information regarding the date of the audiogram and the validity of its results, the Board finds that it cannot be used for rating purposes.

In a May 2010 examination, pure tone thresholds, in decibels, were as follows:

May 2010

HERTZ



1000
2000
3000
4000
RIGHT
30
40
45
65
LEFT
30
30
40
70

The average decibel loss was 45 in the right ear and 43 in the left ear.  Speech discrimination was noted to be 92 percent in the right ear and 88 percent in the left ear.  The examiner diagnosed normal to moderately severe sensorineural hearing loss bilaterally.  The audiometry test results equate to Level I hearing in the right ear using Table VI and Level II in the left ear using Table VI.  38 C.F.R. § 4.85.  Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in the right ear and Level II hearing in the left ear does not result in a rating in excess of the current noncompensable evaluation.

In June 2011, the Veteran submitted a report from his private audiologist, G. Lilechle, AuD, FAAA, CCCA.  Dr. Lilechle diagnosed the Veteran with pseudohypacusis--i.e., functional hearing loss.  Dr. Lilechle explained that there were inconsistencies in the Veteran's responses to questions; for example, he reported having severe to profound sensorineural hearing loss, but the true thresholds appeared to be moderate according to air and bone conduction tests, he used rhyming words which suggested a functional component, and his word recognition scores were fair bilaterally.  Based on Dr. Lilechle's diagnosis and rationale, the Board finds that the inconsistent June 2011 test results do not warrant an initial compensable disability rating.

In evaluating the Veteran's claim for a higher initial rating, the medical evidence does not support the assignment of a compensable rating for bilateral hearing loss.  To the extent that the Veteran's hearing is impaired, as the Veteran has asserted, the fact that his hearing acuity is less than optimal does not by itself establish entitlement to a compensable disability rating.  To the contrary, under the Rating Schedule a higher rating can be awarded only when loss of hearing has reached a specified measurable level.  Therefore, the preponderance of the evidence is against the claim and entitlement to a compensable evaluation 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 extra-schedular 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 extra-schedular 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).  Here, the applicable rating criteria adequately contemplate the manifestations of the Veteran's bilateral hearing loss, which include difficulty hearing.  The rating criteria are therefore adequate to evaluate the bilateral hearing loss, and referral for consideration of an extraschedular rating is not warranted.

Finally, the Court has held that a total disability rating based on individual unemployability (TDIU) is a part of a claim for increased rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a TDIU.  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  The Veteran has not submitted evidence of unemployability due to his bilateral hearing loss, and his bilateral hearing loss symptoms are not of such severity as to prevent him from being able to secure or follow a substantially gainful occupation.  Thus, TDIU is not raised by the record.


ORDER

A compensable evaluation for bilateral hearing loss is denied.

____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs