Citation Nr: 1322336	
Decision Date: 07/12/13    Archive Date: 07/18/13

DOCKET NO.  10-38 800	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUE

Entitlement to a compensable rating for bilateral hearing loss.  


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Fussell, Counsel


INTRODUCTION

The Veteran had active service from October 1966 to May 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2006 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.  

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal, except as otherwise stated herein.  

Following the July 2006 rating decision which is appealed, an August 2010 rating decision granted service connection for tinnitus which was assigned an initial 10 percent rating effective February 26, 2009.  Neither the Veteran nor his representative has disagreed with either the disability rating assigned or the effective date.  Thus, those matters are not before the Board.

The Veteran testified before the undersigned Veterans Law Judge (VLJ) at an April 2011 videoconference.  A transcript thereof is on file.  Thereafter, the Veteran submitted additional evidence, of a February 2013 audiology evaluation, together with a waiver of initial RO consideration of that evidence.  See 38 C.F.R. § 20.1304 (2012).  


FINDINGS OF FACT

Bilateral hearing loss is manifested by no more than Level II hearing in the right ear and Level II hearing in the left ear.  



CONCLUSION OF LAW

The criteria for a compensable rating for bilateral hearing loss are not met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code 6100 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  Proper VCAA notice 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; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).  The VCAA notice was intended to be provided before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

By RO letter in May 2006 the Veteran was notified that the evidence had to show an increase in the severity of his bilateral hearing loss and he was notified of the respective evidence gathering duties.  The Veteran was notified of the law and regulations governing effective dates and the assignment of disability ratings; that is, the date of receipt of the claim and how VA determined disability ratings, including consideration of the nature and symptoms, the severity and duration of symptoms, and the impact of the condition and symptoms on employment.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006) and Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), affm'd in part by Vazquez-Flores v. Shinseki, No. 2008-7150, slip op. (Fed.Cir. Sept. 4, 2009).

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim.  

The Veteran testified in support of the claims before the undersigned VLJ in April 2011.  A transcript of that hearing is on file.  The Veteran's service treatment records (STRs) and records of VA outpatient treatment (VAOPT) records have been received.  Pursuant to his May 2006 request, in June 2006 the Veteran was sent a copy of his STRs.  

Veteran has been afforded VA examinations for the increased rating claim.  Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003).  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i).

Here, the rating examinations are adequate because they were based upon the appellant's prior medical history and described the disability and limitations imposed in sufficient detail.  Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (citing Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  The appellant has not alleged or demonstrated there were any relevant facts overlooked by rating examiners and there is no allegation that the rating examinations were in any manner inadequate.  

38 C.F.R. § 3.103(c)(2) requires that a presiding VLJ fully explain the issues and suggest the submission of evidence that may have been overlooked.  See Bryant v. Shinseki, 23 Vet. App. 488 (2010).  Here, questioning at the hearing focused on the elements for claim substantiation and the representative and the VLJ specifically elicited testimony from the Veteran as to the relevant clinical history and needed elements as to the severity of his service-connected hearing loss.   Moreover, neither the Veteran nor representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor have they identified any prejudice in the conduct of the Board hearing.  Thus, the Board finds that, consistent with Bryant, Id., the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim for a compensable rating for bilateral hearing loss based on the current record. 

As there is no indication that the Veteran was unaware of what was needed for claim substantiation nor any indication of the existence of additional evidence for claim substantiation, the Board concludes that there has been full VCAA compliance.  

Background

In June 2006 the Veteran's wife wrote that his hearing problem had become worse.  He could not carry on a conversation if there was a crowd.  Employees had asked if physicians could fix his hearing.  In operating his towing service, he often had to leave a room if others were talking so that he could hear what someone on a phone was saying.  

VA outpatient treatment (VAOPT) records show that in April 2006 the Veteran reported having difficulty understanding speech in the presence of background noise.  Ear impressions were made for hearing aids.  He was fitted for his hearing aids, bilaterally, in May 2006.  In June 2006 he complained of feedback from his hearing aids and adjustments were made.  

On the authorized audiological evaluation in June 2006, pure tone thresholds, in decibels, were as follows at the following frequencies as measured in Hertz (Hz):

Hertz (Hz)
1000 Hz
2000 Hz
3000 Hz
4000 Hz
Right Ear
20
40
90
95
Left Ear
10
30
85
90

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 94 percent in the left ear.  Diagnostically, his hearing in the right ear was within normal limits through 1,000 Hz, with a mild sensorineural hearing loss from 1,500 to 2,000 Hz, and a profound loss rising to a severe sensorineural hearing loss through the higher frequencies.  In the left ear hearing was within normal limits through 1,500 Hz, with a mild sensorineural hearing loss at 2,000 Hz, and severe to profound sensorineural hearing loss through the higher frequencies.  

The Veteran's hearing aids were returned to the manufacture for adjustments and returned to the Veteran in October 2006.  In February and March 2007 he complained of continuing problems with the hearing aids.  In May 2009 he again sought adjustment or repairs to the hearing aids.  

On the authorized audiological evaluation in May 2009, pure tone thresholds, in decibels, were as follows at the following frequencies as measured in Hertz (Hz):


1000 Hz
2000 Hz
3000 Hz
4000 Hz
Right Ear
25
50
90
100
Left Ear
20
45
90
95

Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 92 percent in the left ear.  Diagnostically, his hearing in the right ear was within normal limits from 250 to 1,000 Hz, with a mild sensorineural hearing loss at 1,500 Hz, a moderate sensorineural hearing loss at 2,000 Hz, a profound sensorineural hearing loss from 3,000 to 6,000 Hz, and a severe sensorineural hearing loss at 8,000 Hz.  In his left ear he had a mild sensorineural hearing loss from 250 to 500 Hz, hearing was within normal limits from 1,000 to 1,500 Hz, a moderate sensorineural hearing loss at 2,000 Hz, a profound sensorineural hearing loss from 3,000 to 4,000 Hz, and a severe sensorineural hearing loss from 6,000 to 8,000 Hz.  

Multiple lay statements were received in support of the Veteran's claim.  An employee stated that she had noted that the Veteran had a definite problem with his hearing, and even some customers had noted it.  He either did not hear when being spoken to by others or did not hear well enough to understand what others were saying.  His trouble hearing made it difficult for him when dealing with customers.  

A co-worker stated that the Veteran obviously had hearing problems.  If there were too many people in the store or any background noise, he either could not hear people or could not understand what was said.  This was especially true with women and children.  This was a problem because he had to deal with the public daily in his business.  A friend that had known the Veteran for more than 30 years stated that he had observed that the Veteran often either did not hear people speaking or did not understand what they said.  It was possible that the Veteran might be looking at the lips of this friend, who spoke in a loud and slow manner.  Also, the Veteran could not hear the sound made by vehicles of some of his customers and in those cases he had to have someone else listen for the sounds.  

At the April 2011 videoconference the Veteran testified that had first been diagnosed with a hearing loss when he was 20 years old but he was now 62 years of age and, so, it had gotten worse.  Page 3 of that transcript.  He testified that he had trouble hearing human speech, particularly that of women and children or groups of people, and especially if there was any background noise in his office or sales room.  His hearing was especially worse in the higher frequencies.  Page 4.  He had a convenience store and a towing business.  He sometimes had to turn a customer over to his employees because he could not understand the customer.  Page 5.  He had had fights with his wife because she sometimes forgot he had difficulty hearing and he would ask her to repeat what she said.  He had bought his first set of hearing aids in 1991.  Until the last few years the technology of hearing aids had not progressed to be of much help.  Page 6.  The service representative had requested that the Veteran provide the results of an outside hearing evaluation.  Page 7.  The presiding VLJ described the methodology of hearing evaluations and noted that the results were numerical, requiring only the mechanical application of the rating schedule.  Page 8.  

The Veteran also noted that VA had provided him with hearing aids, although they had to be sent back to the manufacture several times.  Page 10.  He had not lost any time from work due to his hearing aid, because he was self-employed, but he had lost customers due to his hearing loss.  Pages 10 and 11.  Also, he had trouble listening to directions and at times had driven a hundred miles out of his way.  Page 11.  The Veteran's service representative alleged that the testing conducted did not accurately reflect the Veteran's hearing loss given the volume levels of noise in everyday living, as opposed to testing in a soundproof booth.  Page 12.  


On the audiological evaluation in February 2013 at the Central Arkansas Veterans Health Care System, pure tone thresholds, in decibels, were as follows at the following frequencies as measured in Hertz (Hz):


1000 Hz
2000 Hz
3000 Hz
4000 Hz
Right Ear
20
50
90
90
Left Ear
15
40
90
90

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 96 percent in the left ear.

General Rating Principles

Ratings for a service-connected disability are determined by comparing current symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based as far as practical on average impairment in earning capacity.  Separate diagnostic codes (DCs) identify the various disabilities.  38 U.S.C.A. § 1155.  Disabilities are viewed, and examinations are interpreted, historically, in order to accurately reflect the elements of disability present.  38 C.F.R. § 4.1, 4.2.  A higher rating is assigned if it more nearly approximates such rating.  See 38 C.F.R. §§ 4.7, 4.21.  

Separate ratings may be assigned either initially or during any appeal for an increased rating for separate periods of time based on facts found, a practice known as "staged ratings."  Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007) (staged ratings during the appeal of any increased rating claim).  

In evaluating service-connected hearing impairment, a disability rating is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmen v. Principi, 3 Vet. App. 345, 349 (1992).   The Rating Schedule establishes eleven auditory acuity levels under 38 C.F.R. § 4.85, Diagnostic Code 6100.

Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns).  The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect. 38 C.F.R. § 4.85(b).  

"Puretone threshold average," as used in Tables VI, is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four.  This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI.  38 C.F.R. § 4.85(d).  

Table VII, "Percentage Evaluations for Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing.  The percentage evaluation is located at the point where the row and column intersect.  38 C.F.R. § 4.85(e).  

When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating will be determined by the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(a).  When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating will be determined by 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).  

"The Secretary [of VA], in an internal guidance document, recently reaffirmed the need for VA audiologists to describe the effect of a hearing disability on a claimant's occupational functioning and daily activities."  See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  

"The policy of describing the results of all tests conducted makes sense, particularly in the context of the extraschedular rating provision.  38 C.F.R. § 3.321(b).  Unlike the rating schedule for hearing loss, § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extraschedular rating is warranted.  The Secretary's policy facilitates such determinations by requiring VA audiologists to provide information in anticipation of its possible application."  Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  

Analysis

In this case the results of the audiology examinations in 2006, 2009, and 2013 show that the Veteran has not more than, at worse, Level II hearing acuity in each ear.  This translates to a noncompensable degree of hearing loss.  This is true even though VA has given him hearing aids.  

Moreover, the results of the audiology examinations in 2006, 2006, and 2013 show that the Veteran does not have an exceptional pattern of hearing loss under 38 C.F.R. § 4.86(a) or (b).  

As to the contention at the videoconference that testing of hearing acuity in a sound proof booth is not a true measurement of hearing loss is not sufficient to demonstrate that such testing by VA is in any way inadequate for rating purposes the Veteran has offered no expert medical evidence demonstrating that an audiometry test conducted in a sound-controlled room produces inaccurate, misleading, or clinically unacceptable test results.  Nor has the Veteran offered any expert medical evidence demonstrating that an alternative testing method exists and that this method is in use by the general medical community.  The Veteran and his representative haves simply offered no more than mere opinion as to the impropriety of this testing method.  See Martinak v. Nicholson, 21 Vet. App. 447, 454 (2007).  

The Board has considered the Veteran's testimony and lay statements as his use of hearing aids and as to the social, economic, and occupational impact of his bilateral hearing loss.  Nevertheless, here, the evidence shows that the Veteran was able to carry on conversations with others at the 2011 videoconference and at the most recent VA audiology examinations, even though he has had to use hearing aids.  Moreover, the results of the rating examinations covering a span of a number of years shows that any progression in the severity of his hearing loss is, at most, minimal and still does not warrant a compensable disability rating.  This is sufficient to comply with the applicable VA policies.  See Martinak, Id.  

The Board finds that during the relevant time period in this appeal the Veteran's service-connected hearing loss has not been compensably disabling, so his rating cannot be "staged" because this represents his greatest level of functional impairment attributable to this condition during that time period.  Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007).  

Extraschedular Rating Consideration

Extraschedular consideration under 38 C.F.R. § 3.321(b)(1) is addressed when either raised by the claimant or the evidence, and requires a three-step analysis.  First, is whether the schedular criteria are adequate and, if they are, no extraschedular referral is required.  Second, if inadequate, determine whether there is an exceptional disability picture considering such related factors as marked interference with employment (but not marked interference obtaining or retaining employment) or frequent periods of hospitalization.  Third, if the rating criteria are inadequate and the related factors are present, the case must be referred for a determination of whether an extraschedular rating should be assigned.  Thun v. Peak, 111, 115-16 (2008) (citing VA Gen. Coun. Prec. 6-1996, para. 7, and Fisher v. Principi, 4 Vet. App. 57, 60 (1993)) aff'd Thun v. Peake, 572 F.3d 1366 (Fed.Cir. 2009).  

Here, the schedular rating criteria are comprehensive and contemplate the full range impairment due to the Veteran's hearing loss and provides for compensable ratings based on more significant functional impairment.  In light of his ability to understand and participate in human conversations, at the videoconference and at the VA audiology examinations, no exceptional hearing loss is shown despite his use of hearing aids.  Thus, the disability picture is not shown to be incapable of accurate evaluation with the use of the schedular rating criteria.  

For all of the foregoing reasons, the Board finds that during this appeal the service-connected bilateral hearing loss has not been compensably disabling and, so, there is no basis for staged rating of the disability under consideration, pursuant to Hart, 21 Vet. App. 505, 509-510 (2007), and that a compensable disability rating for bilateral hearing loss must be denied.

Here, the preponderance of the evidence is against the claims and, so, the favorable resolution of doubt is not applicable.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  If the Board determines that the preponderance of the evidence is against the claims, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable.  Ortiz v. Principi, 274 F.3d 1361, 1361 (Fed. Cir. 2001).  

ORDER

A compensable evaluation for bilateral hearing loss is denied.  


____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs