Citation Nr: 1320225	
Decision Date: 06/21/13    Archive Date: 07/02/13

DOCKET NO.  09-31 785	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to an increased rating for bilateral hearing loss, rated as noncompensably disabling prior to July 30, 2012, and 20 percent disabling thereafter.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. Riley, Counsel 
INTRODUCTION

The Veteran served on active duty from August 1951 to September 1954 and is a recipient of the Purple Heart, the Bronze Star, and the Combat Infantryman Badge.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which, in pertinent part, continued a noncompensable evaluation for service-connected bilateral hearing loss.  

The case was previously before the Board in July 2012 and February 2013 when it was remanded for additional development.  The case has now returned to the Board for further appellate action. 

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

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.  For the period prior to July 30, 2012, the Veteran's bilateral hearing loss manifested Level III hearing impairment in the right ear and Level III hearing impairment in the left ear.

2.  For the period beginning July 30, 2012, the Veteran's bilateral hearing loss manifests Level IV hearing impairment in the right ear and Level IV hearing impairment in the left ear.




CONCLUSIONS OF LAW

1.  The criteria for a compensable rating for bilateral hearing loss for the period prior to July 30, 2012 have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012).

2.  The criteria for a rating in excess of 20 percent for bilateral hearing loss for the period beginning July 30, 2012 have not been met.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service connection for bilateral hearing loss was granted in a November 2001 rating decision with an initial noncompensable evaluation assigned effective August 3, 2001.  The March 2008 rating decision on appeal continued the noncompensable evaluation.  An increased 20 percent evaluation was assigned in a December 2012 rating decision effective July 30, 2012.  The Veteran contends that an increased rating is warranted throughout the claims period as his disability makes it difficult to communicate with others in person and over the telephone. 

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).  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.  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, however, 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.  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).

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).  

During the period prior to July 30, 2012, the Veteran's most severe hearing loss was demonstrated at a November 2010 VA audiological examination.  An audiogram indicated pure tone thresholds, in decibels, were as follows:







HERTZ



500
1000
2000
3000
4000
RIGHT
40
10
55
85
100
LEFT
45
50
60
95
100

Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 90 percent in the left ear.  The diagnosis was mild to profound sensorineural hearing loss in the right ear and moderate to profound sensorineural hearing loss in the left ear. 

The right ear demonstrated a pure tone threshold average of 70 Hz with a word recognition score of 84 percent at the November 2010 VA examination.  This level of hearing impairment translates to Level III under Table VI.  Regarding the left ear, a pure tone threshold average of 76 Hz was shown in November 2010 with a word recognition score of 90 percent.  This level of impairment also translates to Level III under Table VI.  Level III hearing in the right ear and Level III hearing in the left ear warrants a noncompensable evaluation under the applicable criteria.  38 C.F.R. § 4.85, Diagnostic Code 6100.  Thus, a compensable evaluation is not warranted for the Veteran's bilateral hearing loss for the period prior to July 30, 2012. 

During the period beginning July 30, 2012, the Veteran's most severe hearing loss was documented at the July 2012 VA audiological examination.  He complained of difficulty hearing conversations, especially in competing noise, and problems hearing speakers more than six feet away or over the telephone.  The authorized audiogram indicated pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
40
40
65
90
LEFT
45
50
55
90
95

Speech audiometry revealed speech recognition ability of 80 percent in the right ear and 82 percent in the left ear.  
The July 2012 VA examination demonstrated a right ear pure tone threshold average of 59 Hz with a word recognition score of 80 percent.  This level of hearing impairment translates to Level IV under Table VI.  The left ear demonstrated a pure tone threshold average of 72 Hz with a word recognition score of 82 percent.  This level of impairment also translates to Level IV under Table VI.  Level IV impairment in both ears warrants a 20 percent evaluation under the applicable criteria.  38 C.F.R. § 4.85, Diagnostic Code 6100.  A rating in excess of 20 percent is therefore not appropriate for the period prior to July 30, 2012.  

The Board is sympathetic to the Veteran's complaints related to his heating loss, but finds that there is no schedular basis for granting a compensable rating during the period prior to July 30, 2012, or a rating in excess of 20 percent thereafter.  In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21.

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.  The Veteran's hearing loss is manifested by symptoms such as difficulty understanding conversations and general loss of hearing.  These manifestations are contemplated in the rating criteria.  The rating criteria are therefore adequate to evaluate the Veteran's disability.  In addition, the Board has considered the statements of the Veteran regarding the functional effects of his hearing loss in accordance with the provisions of 38 C.F.R. § 3.321(b)(1), but does not find that the Veteran has described functional effects that are "exceptional" or not otherwise contemplated by the currently assigned ratings for hearing loss.  Rather, his description of difficulties with hearing is consistent with the degree of disability addressed by such evaluations.  Therefore, referral for consideration of extraschedular rating is not warranted.

The Court has also held that a request for a total disability rating due to individual employability resulting from service-connected disability (TDIU), whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Thus, when entitlement to TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits for the underlying disability.  Id at 454.

In this case, the record is negative for evidence that the Veteran is unemployable.  He is not in receipt of Social Security disability benefits, and there is no evidence that he is not currently working.  There is also no evidence that the Veteran's hearing loss has interfered with employment, and the Veteran has not stated that he has lost any time from work or is unable to perform his duties due to service-connected hearing loss.  Therefore, remand or referral of a claim for TDIU is not necessary as there is no evidence of unemployability due to the service-connected condition.


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 a November 2007 letter.  The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in the November 2007 letter.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

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, records of VA treatment, and private medical records.  Additionally, the Veteran was provided proper VA examinations in November 2010 and July 2012 in response to his claim for an increased rating.

The Board also finds that VA has complied with the July 2012 and February 2013 remand orders of the Board.  In response to the Board's remands, the Veteran was provided a VA audiological examination in July 2012.  Records of treatment from the Houston VA Medical Center (VAMC) dated to July 2012 were also obtained and associated with the virtual claims file.  VA also obtained VA audiogram reports from April 18, 2007 and March 16, 2010 audiological assessments at the Houston VAMC.  Although the February 2013 remand ordered that scanned results of an April 11, 2007 VA audiological assessment should be added to the record, the relevant examination report does not indicate that an audiogram was performed; the Veteran was only seen on that date for replacement of his right hearing aid.  Any associated audiogram was requested, but there is no indication that such a report exists.  The case was then readjudicated in June 2013.  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 bilateral hearing loss for the period prior to July 30, 2012 is denied. 

Entitlement to a rating in excess of 20 percent for bilateral hearing loss for the period beginning July 30, 2012 is denied. 



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



Department of Veterans Affairs