Citation Nr: 1319022	
Decision Date: 06/11/13    Archive Date: 06/21/13

DOCKET NO.  09-01 966	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to a compensable rating for left ear hearing loss.


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. Riley, Counsel 


INTRODUCTION

The Veteran served on active duty from June 1969 to June 1971.  This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which, in pertinent part, continued a noncompensable rating for service-connected left ear hearing loss.  

In September 2012, the Veteran testified before the undersigned Veterans Law Judge at the RO.  A transcript of the hearing is of record. 

The Board remanded the case for further action by the originating agency in February 2013.  The case has now returned to the Board for further appellate action.


FINDING OF FACT

The Veteran's left ear manifests no more than Level V hearing loss.


CONCLUSION OF LAW

The criteria for a compensable rating for left ear hearing loss have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.383, 4.85, 4.86, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection for left ear hearing loss was granted in a July 1989 rating decision with an initial noncompensable evaluation assigned effective March 15, 1989.  The Veteran contends that a compensable rating is warranted for his left ear hearing loss as he has difficulty hearing and understanding without the use of his hearing aids, especially in noisy environments.  
Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.

The Veteran's entire history is reviewed when making disability ratings.  See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  When the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).  Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Staged ratings are also appropriate in an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran's left ear hearing loss is currently rated as noncompensably disabling under Diagnostic Code 6100.  Evaluations of hearing loss range from noncompensable to 100 percent, based upon 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 puretone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz.  38 C.F.R. § 4.85(a) and (d).  

To evaluate the degree of disability for service-connected bilateral hearing loss, the Rating Schedule establishes eleven (11) 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.  The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  

The Veteran's most severe left ear hearing loss was measured at the March 2013 VA audiological examination.  At that time, he reported having difficulty hearing over distances and in church without the use of his hearing aids.  The authorized audiological evaluation indicated pure tone thresholds in the left ear, in decibels, were as follows:




HZ



500
1000
2000
3000
4000
LEFT
40
45
55
50
50

The average loss in the left ear was 50 decibels.  Speech audiometry revealed speech recognition ability of 88 percent in the left ear.  The Veteran was diagnosed with left ear sensorineural hearing loss. 

Although the Veteran's highest puretone threshold values were noted at the March 2013 VA examination, he manifested a lower speech recognition score during a November 2008 VA contract examination.  At that time, speech recognition in the left ear was measured as 68 percent.  For the purposes of determining the Veteran's appropriate hearing loss rating, the Board will use the March 2013 puretone threshold average of 50 decibels and the November 2008 speech recognition score of 68 percent.  

A puretone threshold average of 50 and a speech recognition score of 68 percent translates to Level V hearing impairment under Table VI.  Level V hearing impairment in one ear with normal hearing in the other ear is considered noncompensably disabling.  38 C.F.R. § 4.85, Diagnostic Code 6100.  As the Veteran manifests an exceptional pattern of hearing impairment, the Board has also considered Table VIa.  Under this table, the Veteran's hearing loss is still consistent with Level V impairment in the left ear and a noncompensable rating.  Id.

The Veteran is only service-connected for hearing loss of the left ear.  38 C.F.R. § 4.85(f) provides that if impaired hearing is service-connected in only one ear, the nonservice-connected ear will be assigned a hearing impairment designation of I, subject to 38 C.F.R. § 3.383.  Effective from December 6, 2002, 38 C.F.R. § 3.383 was amended to provide that where hearing impairment in the service-connected ear is compensable to a degree of 10 percent or more and the hearing impairment in the other ear is considered a disability under § 3.385, the hearing impairment in the non service-connected ear will be considered in evaluating the service-connected disability.  69 Fed. Reg. 48148-50 (August 9, 2004) [codified as amended at 38 C.F.R. § 3.383(a)].  

As noted above, the hearing impairment in the Veteran's left ear is not to a compensable degree.  Therefore, the hearing impairment in the non service-connected right ear is not for consideration in evaluating the service-connected disability.  The Board is sympathetic to the Veteran's complaints of hearing loss, but his service-connected left ear hearing impairment has been properly evaluated as noncompensably disabling throughout the evaluation period.  Accordingly, an increased schedular rating is not warranted.  

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The Court of Appeals for Veterans Claims (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).  
The Board finds that the rating criteria contemplate the Veteran's disability.  His left ear hearing loss is manifested by symptoms such as loss of hearing acuity and difficulty hearing through background noise.  These manifestations are all contemplated in the rating criteria.  The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of an extraschedular rating is not warranted.


Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

VA 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; (3) and that the claimant is expected to provide.  Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in July 2005 and May 2010 letters.  The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in the May 2010 letter.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

VCAA notice should be given before an initial AOJ decision is issued on a claim.  Pelegrini II, 18 Vet. App. at 119-120.  While complete VCAA notice, specifically notice of the Dingess elements, was provided after the initial adjudication of the claim, this timing deficiency was remedied by the issuance of VCAA notice followed by readjudication of the claim.  Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006).  The claim was readjudicated in the April 2013 supplemental statement of the case (SSOC).  Therefore, any timing deficiency has been remedied.
VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a 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 a 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).

VA has obtained records of treatment reported by the Veteran, including service treatment records and records of VA treatment.  The Veteran has not identified any private physicians or facilities that have treated his left ear hearing loss.  Additionally, the Veteran was provided proper VA examinations August 2005, November 2008, and March 2013 in response to his claim for an increased rating.

The Board also finds that VA has complied with the February 2013 remand orders of the Board.  In response to the Board's remand, the Veteran was provided a VA examination in March 2013 to determine the current severity of his service-connected left ear hearing loss.  The case was then readjudicated in an April 2013 SSOC.  Therefore, VA has complied with the remand orders of the Board.  

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements.  


ORDER

Entitlement to a compensable rating for left ear hearing loss is denied.



____________________________________________
ROBERT E. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs