Citation Nr: 1319095	
Decision Date: 06/12/13    Archive Date: 06/21/13

DOCKET NO.  11-00 640	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUE

Entitlement to a compensable rating for bilateral hearing loss.


ATTORNEY FOR THE BOARD

J. Young, Associate Counsel


INTRODUCTION

The Veteran had active military service from March 1966 to March 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska that determined that a compensable rating for the Veteran's bilateral hearing loss was not warranted.


FINDING OF FACT

Audiometric testing done for VA compensation purposes reveals no worse than Level II hearing acuity in the Veteran's right ear and Level IV hearing acuity in his left ear.


CONCLUSION OF LAW

The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.85 Diagnostic Code (DC) 6100 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Notice and Assistance

Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  See also Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010).  

The RO provided the Veteran with substantially compliant notice by a letter dated August 2010.  

VA also has a duty to assist the Veteran in the development of a claim, which is not abrogated by the granting of service connection.  The claims file contains the Veteran's service treatment records (STRs), his VA treatment records, and statements provided by the Veteran.

A pertinent VA examination/opinion with respect to the issue on appeal was obtained in August 2010.  38 C.F.R. § 3.159(c)(4).  To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The VA examinations/opinions obtained here is sufficient, as it considered all of the pertinent evidence of record, including the statements of the Veteran, and provided explanations for the opinions stated as well as the medical information necessary to apply the appropriate rating criteria.  VA has met its duty to assist the Veteran with respect to obtaining a VA examination concerning the issue (adjudicated herein) of entitlement to a compensable rating for bilateral hearing loss. 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 the claims.

VA has no duty to inform or assist that was unmet. The Veteran has not identified any additional pertinent medical records which have not been obtained and associated with the claims folder.


II.  Legal Criteria

Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Separate rating codes identify various disabilities. 38 C.F.R. Part 4.  In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records.  See generally 38 C.F.R. §§ 4.1, 4.2.  Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7. Vet. App. 55, 58 (1994).  Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings.  Id.  Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  

Defective hearing is rated in accordance with the criteria set forth in 38 C.F.R. §§ 4.85, 4.86.  In evaluating the Veteran's bilateral hearing loss, the Board notes that hearing loss evaluations are determined by a mechanical application of the rating schedule, which is grounded on numeric designations assigned to audiometric examination results.  Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1999).  Ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity.  Auditory acuity is gauged by examining the results of controlled speech discrimination tests, together with the results of pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz.  To rate the degree of disability, the rating schedule establishes 11 auditory acuity levels ranging from Level I, for essentially normal acuity, through Level XI, for profound deafness.  38 C.F.R. § 4.85.  

The Board must also consider the provisions of 38 C.F.R. § 4.86, which offers the possibility of a higher evaluation when exceptional patterns of hearing loss are present.  Exceptional patterns are those where the pure tone thresholds at each of the four evaluated frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, or where the pure tone threshold at 1000 Hertz is 30 decibels or less and the pure tone threshold at 2000 Hertz is 70 decibels or more.  In this case, as shown below, the Veteran does not have an exceptional pattern of hearing loss.

III.  Factual Background

The Veteran is seeking an increased rating for bilateral hearing loss and he asserts his disagreement with the rating criteria used by VA.  See Veteran's Claim; see also Veteran's August 2010 and September 2010 Statements.

An August 2010 VA treatment outpatient note indicates results from the Veteran's March 2010 audiogram indicating the same findings as an August 2010 audiological examination report.  

Testing revealed in the Veteran's August 2010 VA audiology examination the following puretone thresholds, in decibels:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
35
50
40
LEFT
20
20
65
75
80

Based upon the above findings, the Veteran's puretone average in his right ear was 36.25 dB.  His puretone average in the left ear was 60 dB.  The Veteran's speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 76 percent in the left ear.  Pursuant to 38 C.F.R. 4.85, Tables VI and VII with regards to the Veteran's right ear, his pure tone threshold average and speech discrimination score received a numeric designation of Level II.  Turning to the Veteran's left ear, the foregoing pure tone threshold average and speech discrimination score received a numeric designation of Level IV.  

While the record does not indicate specific complaints regarding the effects of his hearing loss on his daily life, the Veteran was diagnosed with mild sensorial hearing loss in his right ear and was diagnosed with moderately severe sensorial hearing loss in his left ear.  The VA examiner opined that the Veteran's hearing loss and tinnitus "would cause problems with daily communication, sound awareness, and localization of sounds."  The VA examiner also noted that with treatment, the Veteran's hearing thresholds would change.  See August 2010 VA Examination.

IV.  Analysis

Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that an increased rating is not warranted.  The Board has considered the Veteran's statements in disagreement with the rating criteria and finds that he is both competent and credible in his assertions.  Even taking his statements into consideration, however, the Board finds that the preponderance of the evidence demonstrates that the Veteran's symptoms do not more closely approximate the criteria for the next higher rating.

The Veteran did not report any functional impairment at the August 2010 examination.  The Board acknowledges that the August 2010 examiner did discuss the functional effects of the Veteran's bilateral hearing loss disability.

Accordingly, after accessing the findings of the Veteran's August 2010 audiological examination, pursuant to 38 C.F.R. 4.85, Tables VI and VII, the Board concludes that the totality of the evidence of record has not shown that the Veteran's bilateral hearing loss warrants a compensable schedular rating at any time during the current appeal period.  

The Board also finds that evidence does not show an exceptional or unusual disability picture as would render impractical the application of the regular schedular rating standards.  See 38 C.F.R. § 3.321 (2012).  The current evidence of record does not demonstrate that the bilateral hearing loss has resulted in frequent periods of hospitalization or in marked interference with employment.  Id.  
In this regard, the Board notes that it is undisputed that the Veteran's bilateral hearing loss has an adverse effect on employability, but it bears emphasis that the schedular rating criteria are designed to take such factors into account.  The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations.  38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability."  38 C.F.R. § 4.1 (2012).  In this case, the Veteran has not reported any specific problems and the results of the audiological examination and the VA examiner's opinion are specifically contemplated by the criteria discussed above.  38 C.F.R. § 4.10.  Therefore, given the lack of evidence showing unusual disability not contemplated by the rating schedule, the Board concludes that a remand to the RO for referral of this issue to the VA Central Office for consideration of an extraschedular evaluation is not warranted.

The Board acknowledges that in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the U.S. Court of Appeals for Veterans Claims (Court) held that, relevant to VA audiological examinations, 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.  In the present case, the VA audiological evaluation of record contains some findings relevant to the impact of the Veteran's hearing on his daily and occupational living.  However, the Board notes that in Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009), the U.S. Court of Appeals for the Federal Circuit determined that the phrase "daily life" as used in Part 4 of 38 C.F.R., can be cited to Subpart A, which provides "regulations prescribing the policies and procedures for conducting VA medical examinations."  The Court has previously noted that regulations governing procedures for conducting VA medical examinations are not considered part of the rating schedule because, "[t]he rating schedule consists only of those regulations that establish disabilities and set forth the terms under which compensation shall be provided.  A regulation prescribing the policies and procedures for conducting a VA medical examination does not serve these purposes."  As such, the Federal Circuit stated that while the effects of daily life are relevant to the doctor conducting the examination, these effects are not relevant to disability rating specialist.  Therefore, the Board finds, in relying on the decision in Vazquez-Flores, that it is not necessary to do so and therefore, proceeded with the decision. See Vazquez-Flores v. Shinseki, 580 F.3d at 1280.

Although the Veteran has submitted evidence of a medical disability, and a made claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable, as a result of his service-connected bilateral hearing loss.  The issue of entitlement to a total disability rating based on individual unemployability due to this service-connected disability has, therefore, not been raised.  Rice v. Shinseki, 22 Vet. App. 447 (2009);  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).


ORDER

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



____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs