Citation Nr: 1321678	
Decision Date: 07/08/13    Archive Date: 07/18/13

DOCKET NO.  09-04 309	)	DATE
	)
	)

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



THE ISSUE

Entitlement to an initial compensable evaluation for bilateral hearing loss.



REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

Siobhan Brogdon, Counsel



INTRODUCTION

The Veteran served on active duty from June 1955 to October 1976.  Prior to that he had training in the Mississippi Army National Guard from June 1954 to May 1955.

This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a rating decision of the VA Regional Office (RO) in Waco, Texas.

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

During the appeal period bilateral hearing loss has been manifested by no more than Level I hearing acuity in both the right and left ears.  


CONCLUSION OF LAW

The criteria for an initial compensable evaluation for bilateral hearing loss are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran asserts that he is entitled to a higher disability evaluation for bilateral hearing loss disability.


Veterans Claims Assistance Act of 2000 (VCAA)

VA has a 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met in this instance regarding the Veteran's claim.  There is no issue as to providing an appropriate application form or the completeness of the application.  VA appropriately notified the Veteran of the information and evidence needed to substantiate and complete the claim.  

VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claim of entitlement to a higher initial rating for bilateral hearing loss, to include affording him VA examinations.  The examinations are adequate to render a determination as to the issue on appeal.  The record also reflects that the Veteran requested and was scheduled for a personal hearing in April 2010 but subsequently cancelled his appearance.
 
The Board finds that there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.  38 C.F.R. § 3.159(c).  As such, the claim is ready to be considered on the merits.

Law and Regulations

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Separate diagnostic codes identify the various disabilities.

Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on 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 pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second, with 11 auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85 (2012).

In addition to the hearing loss criteria above, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa [C.F.R. § 4.85], whichever results in the higher numeral. 38 C.F.R. § 4.86(a) (2012).

When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, 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.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(b) (2012).

Factual Background

A claim for service connection of bilateral hearing loss was received in March 2008.  

The report of a May 2008 hearing evaluation from Cobb Audiology and Hearing Aid Center was received in support of the claim that disclosed the following [approximate] puretone thresholds in the right and left ears: 




HERTZ




1000
2000
3000
4000
RIGHT

20
30
40
40
LEFT

25
20
45
50

The puretone threshold averages are 33 and 35 for the right and left ears, respectively.  Speech discrimination scores were 100 percent in each ear.  An assessment of mild to moderate noise-induced hearing loss was rendered.  The test used for speech discrimination is not indicated.

When evaluated for VA compensation and pension purposes in July 2008, the following puretone thresholds were obtained for the right and left ears:




HERTZ




1000
2000
3000
4000
RIGHT

15
25
35
50
LEFT

15
20
30
45

The puretone threshold averages are 31 and 28 for the right and left ears, respectively.  Speech discrimination scores were 92 percent in both ears.  

Service connection for bilateral hearing loss disability was granted by rating action dated in August 2008 effective from March 7, 2008 and a noncompensable evaluation was assigned from the date of receipt of the claim.  Therefore, analysis of this issue requires consideration of the rating to be assigned effective from the date of the award of service connection with a view towards a staged rating, if indicated. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).

In August 2008, VA outpatient records reflect that the Veteran was evaluated for hearing aids.

The Veteran most recently underwent audiology evaluation for VA compensation and pension purposes in September 2012.  The following puretone thresholds were obtained for the right and left ears:




HERTZ




1000
2000
3000
4000
RIGHT

25
30
50
60
LEFT

20
25
40
50

The puretone threshold averages are 41 and 34 for the right and left ears, respectively.  Speech discrimination scores were 96 percent in each ear.  A diagnosis of sensorineural hearing loss in both ears was provided.  

Legal Analysis

The May 2008 private audiology evaluation demonstrates that the appellant had a puretone threshold average of 33 decibels in the right ear with a speech discrimination score of 100 percent that equates to an auditory acuity numeric designation of Level I hearing.  The left ear reflects a puretone threshold average of 35 decibels with a speech discrimination score of 100 percent that corresponds to an auditory acuity numeric designation of Level I hearing according to VA rating criteria.  Under Table VII of 38 C.F.R. § 4.85, hearing impairment manifested by Level I hearing acuity in the right ear and Level I hearing acuity in the left ear comport with the criteria for a zero percent disability rating.

Additionally, right and left ear hearing impairment shown on this audiological examination would not qualify as an exceptional pattern of hearing impairment for VA compensation purposes.  This is because pure tone thresholds at each of the four specified frequencies were not all 55 decibels or more, nor were pure tone thresholds 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. See 38 C.F.R. § 4.86.  The Board would point out in this instance, however, that the results obtained from the private audiology evaluation are reported for comparative purposes only.  It is not clear what test was used to determine speech discrimination.  Further clarification is not needed however, as nothing in these findings suggests significant variance with the VA examinations, and there is no indication, whatever test was used, that the private findings suggest that a compensable rating is indicated. 

The June 2008 VA audiology examination demonstrates that under Table VI of the Rating Schedule, the Veteran's hearing impairment at that time was also manifested by Level I hearing acuity in both the right and left ears.  See 38 C.F.R. § 4.85, Table VI.  As well, right and left ear hearing loss shown on that evaluation does not qualify as an exceptional pattern of hearing impairment.  See 38 C.F.R. § 4.86.  Using Table VII, Level I hearing acuity in both the right and left ear warrants assignment of a noncompensable evaluation.  See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100.  

Similarly, the September 2012 VA audiological evaluation reflects that under Table VI of the Rating Schedule, the Veteran's hearing impairment is manifested by Level I hearing acuity in both the right ear and left ear.  See 38 C.F.R. § 4.85, Table VI.  The hearing loss in both ears does not qualify as an exceptional pattern of hearing impairment.  See 38 C.F.R. § 4.86.  Using Table VII, Level I hearing acuity in both ears results in no more than a noncompensable evaluation for bilateral hearing impairment.  See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100.  

The Board has carefully considered the Veteran's contentions attesting to more severe defective hearing.  However, the evidentiary record does not support a basis to find that hearing loss disability approximates the criteria for a higher rating as to any audiometric evaluation under consideration.  The Board points out that hearing impairment by VA standards is calibrated on controlled speech discrimination tests, together with the average hearing threshold levels, as measured by pure tone audiometry tests.  The assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed and is not amenable to subjective interpretation. See Lendenmann v. Principi, 3 Vet. App. 345.  Under the rating schedule, the severity of the Veteran's hearing loss as demonstrated on examination has been no more than noncompensably disabling since the inception of the claim.  See Hart v. Mansfield, 21 Vet. App. 505 (2007) and Fenderson v. West, 12 Vet. App. 119 (1999).

Finally, the record does not establish that the rating criteria are inadequate for evaluating the Veteran's service-connected bilateral hearing loss disability.  The evidence shows that the relative manifestations and the effects of the disability have been fully considered and are contemplated by the rating schedule.  Therefore, referral for an extraschedular rating is not necessary.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Further there is no indication that the Veteran is unemployed due to his hearing loss.  As such a total rating claim is not raised by the record.



ORDER

An initial compensable evaluation for bilateral hearing loss is denied.  


____________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs