Citation Nr: 1322401	
Decision Date: 07/12/13    Archive Date: 07/18/13

DOCKET NO.  10-11 647	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to a compensable disability rating for left ear hearing loss.


ATTORNEY FOR THE BOARD

G. Slovick, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1986 to October 1988.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in July 2008 of a Department of Veterans Affairs (VA) Regional Office (RO), which continued the Veteran's noncompensable evaluation for left ear hearing loss. 

In February 2013, the Board remanded the issue for a new VA examination.
FINDING OF FACT

Left ear hearing loss has been manifested by level IV and level III hearing acuity.


CONCLUSION OF LAW

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


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  See also 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); Dingess v. Nicholson, 19 Vet. App. 473 (2006).

An April 2008 letter satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a) ; Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1) . This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning.  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The claim was subsequently readjudicated, most recently in a September 2012 supplemental statement of the case.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 


VA has obtained service treatment records; VA treatment records; VA examination reports; assisted the Veteran in obtaining evidence; and, afforded him the opportunity to present statements and evidence.  All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file and he has not contended otherwise.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  

This matter was before the Board in February 2013, when the case was remanded to the VA RO (via the Appeals Management Center (AMC), in Washington, D.C.).  The purpose of this remand was to obtain a new VA audiology examination.  All of the actions previously sought by the Board through its prior development request appear to have been completed as directed.  See Stegall v. West, 11 Vet. App. 268, 270-71 (1998).  Subsequently, a supplemental statement of the case (SSOC) was issued in April 2013, which confirmed the previous denial.

Of note, the Veteran has made multiple contentions that the findings of his VA examinations did not adequately reflect the severity of his hearing loss.  The Veteran does not contend that his examinations specifically were inadequate, but instead argues that the entire method by which hearing loss is tested is, in fact, faulty.  See May 2009 Notice of Disagreement, February 2010 VA-9 Substantive Appeal.  

While cognizant of these assertions, the Veteran's VA examinations were conducted according to the standards set forth in 38 C.F.R. §4.85, which mandates that certain tests are conducted in a particular environment to ensure accuracy in testing.  The VA examination is adequate as it conformed to the mandates of 38 C.F.R. §4.85, and the impact of hearing loss was considered.  It allows the Board to make a fully informed determination.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  

There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 486; Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

Accordingly, the appellant is not prejudiced by a decision at this time.

Laws and Regulations

Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity resulting from a disability.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder.  38 C.F.R. §§ 4.1 and 4.2.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed.  Id.

In determining a disability evaluation, the VA has a duty to acknowledge and consider all regulations that are potentially applicable based upon the assertions and issues raised in the record, and to explain the reasons used to support the conclusion.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

A July 2001 rating action awarded the Veteran service connection for left ear hearing loss.  In February 2008, the Veteran made a claim for an increased rating, and in July 2008, the Veteran's noncompensable evaluation was continued.  The Veteran appeals that decision.  

The noncompensable evaluation for bilateral hearing loss was assigned under Diagnostic Code 6100.  Under the rating criteria, the basic method of rating hearing loss involves audiological test results of organic impairment of hearing acuity, as measured by the results of controlled speech discrimination testing (Maryland CNC) together with the average decibel threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 hertz.  These test results are entered into a table of the rating schedule (Table VI) to determine the auditory acuity level of each ear (ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness), and these auditory acuity levels are entered into another table (Table VII) of the rating schedule to determine the percentage disability rating.  38 C.F.R. § 4.85. 

If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of §3.383 of this chapter.  38 C.F.R. § 4.85(f) (2012).

The Court has held that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).  

Where there is a question as to which of the two evaluations shall be applied, the higher evaluation 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.





Analysis

The appealed July 2008 rating decision was based on a July 2008 VA audiometric examination which which included an audiological evaluation noting pure tone thresholds, in decibels, as follows:


HERTZ

A
500
B
1000
C
2000
D
3000
E
4000
B+C+D+E
AVG.
LEFT
35
30
105
105
105
86.25

Speech audiometry revealed speech recognition ability of 90 percent in the left ear.  The Veteran stated during his examination that his greatest difficulty occurred when trying to hear in groups.  A diagnosis of mild loss between 500 and 1000 Hz and moderately severe hearing loss from 250 Hz and 1500 Hz and profound loss between 2000 and 8000 Hz was assigned.  

Based upon the results of the VA February 2009 audiological examination, a Roman numeral IV is derived for the left ear.  In accordance with 38 C.F.R. § 4.85 (f), the compensable left ear is combined with a level I hearing loss for the non-service connected right ear.  A noncompensable evaluation is derived from Table VII of 38 C.F.R. § 4.85 by intersecting the row I with column IV.  

In his August 2008 notice of disagreement, the Veteran noted that he used a hearing aid and that testing done in a sound proof chamber could not be compared to a social or business situation.  He explained that he was no longer able to use the phone with his left ear and that he had trouble understanding others in conversation.  

In a February 2010 correspondence, the Veteran challenged the method by which audiologists determined his speech discrimination.  The Veteran explained that he has had a hearing aid which helped but in spite of this he still could not understand others in a group setting.  He described going to a Cub Scout meeting with his son and being unable to understand the troop master.  He explained that he had trouble with others as they did not understand his hearing loss, and assumed he was shy or withdrawn.  He explained that "social events are a thing of the past."

He explained that he had to turn the volume up on his television and had trouble discriminating what was said in parts of a movie and had trouble hearing his kids at the dinner table.  He explained that he felt he should be given a 20 percent disability evaluation for his left ear hearing loss.  

On VA audiological evaluation in March 2013 pure tone thresholds, in decibels, were as follows:


HERTZ

A
500
B
1000
C
2000
D
3000
E
4000
B+C+D+E
AVG.
LEFT
40
35
100
100
100
83.75

Speech audiometry revealed speech recognition ability of 92 percent in the left ear.  During his examination the Veteran explained that he worked in real estate and that he found it difficult to understand clients and others he worked with, particularly in background noise.  The Veteran reported trouble hearing his children and spouse which was also worse in background noise.  

Based upon the results of the VA February 2009 audiological examination, a Roman numeral III is derived for the left ear.  In accordance with 38 C.F.R. § 4.85 (f), the compensable left ear is combined with a level I hearing loss for the non-service connected right ear.  A noncompensable evaluation is derived from Table VII of 38 C.F.R. § 4.85 by intersecting the row I with column III.  

Based on the results of all testing during this appeal, and applying the stated rating criteria to the results, a Roman Numeral IV and Roman Numeral III designations for the left ear are demonstrated.  Such designations when combined with level I hearing acuity for the non-compensable right ear equate to a noncompensable
 (0 percent) evaluation.  The VA examination findings are consistent with the other evidence of record and are considered to adequately represent the Veteran's present level of disability.  Therefore, a 0 percent disability rating is applicable under the provisions of 38 C.F.R. § 4.85, Table VII.  

The Board has considered the Veteran's statements and is aware of his complaints about not being able to hear well. It must, however, be reiterated that disability ratings for hearing impairment are derived by a mechanical application of the numeric designations assigned after audiological evaluations are rendered. Lendenmann, 3 Vet. App. at 349.  There was no indication that the audiological evaluation produced test results which were invalid.

The provisions of 38 C.F.R. § 4.86 pertaining to exceptional patterns of hearing loss are not for application as the requirements have not been met. 

The scheduler evaluations in this case are adequate.  Ratings in excess of those assigned are provided for certain degrees of hearing impairment, but the medical evidence reflects that such is a degree of hearing loss is not present.  Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disability.  The Veteran has not required hospitalization due to his hearing problem, and, while he has discussed problems hearing others in a work setting, he the evidence of record does not demonstrate marked interference of employment.  Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. 

When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).  

The preponderance of the evidence is against the claim for an increased rating for left ear hearing loss; there is no doubt to be resolved; and an increased rating is not warranted.


ORDER

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




____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs