Citation Nr: 1324765	
Decision Date: 08/05/13    Archive Date: 08/13/13

DOCKET NO.  10-02 995	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut


THE ISSUE

Entitlement to an initial compensable rating for left ear hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J.B. Freeman, Counsel

INTRODUCTION

The Veteran (appellant) served on active duty from April 1988 to October 2008.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the RO in Hartford, Connecticut, which, in pertinent part, granted service connection for left ear hearing loss and assigned an initial noncompensable rating.  The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence.  

The Veteran testified before a Decision Review Officer (DRO) at a March 2010 hearing at the RO.  A transcript has been associated with the file.

Evidence has been received subsequent to the final consideration of the claim by the RO.  The Veteran, through his representative, has waived RO consideration of that evidence.  The Board may consider the appeal.  See 38 C.F.R. § 20.1304(c) (2012).


FINDINGS OF FACT

1.  The Veteran does not have a right ear hearing loss disability for VA purposes.  

2.  The Veteran's left ear hearing loss has been productive of no worse that Level I hearing impairment.

3.  The Veteran does not have an exceptional hearing loss pattern.

4.  The schedular ratings criteria are adequate to rate the Veteran's service-connected left ear hearing loss.




CONCLUSION OF LAW

The criteria for an initial compensable evaluation for left ear hearing loss are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.85, 4.86, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claim for an initial compensable rating.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).

When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  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; and (3) that the claimant is expected to provide.  Id.  The initial rating appeal arises from a granted claim of service connection.  Compliance with the first notice element requires notice of the five service connection elements in initial ratings cases: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date.  See Dunlap v. Nicholson, 21 Vet. App. 112 (2006).  Compliant notice was provided to the Veteran as part of the Benefit Delivery at Discharge program in September 2008 prior to initial adjudication of the Veteran's claim in May 2009.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).  

The Board concludes VA's duty to assist in obtaining records has been satisfied.  The Veteran's service treatment records and VA medical records are in the file.  The Veteran has submitted a copy of 2008 and 2010 audiometric tests from his employer.  The Veteran has not referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim.

The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran.  Green v. Derwinski, 1 Vet. App. 121 (1991).  In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012).

The RO provided the Veteran appropriate VA examinations in October 2008 and May 2010.  The Veteran has not reported receiving any recent treatment specifically for this condition (other than at VA and the private treatment mentioned above, records of which are in the file).  The Veteran testified as to worsening symptoms in March 2010 and was provided another VA examination in May 2010.  There is no indication of a material change in the severity of the Veteran's service-connected disorder since he was last examined.  38 C.F.R. § 3.327(a).  The examination report provides sufficient evidence to apply the ratings schedule and to determine that the schedular rating is adequate to rate the disability.  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (mere passage of time does not require VA to provide a new medical examination); see also VAOPGCPREC 11-95.  

VA hearing examination reports must include a discussion of the effect of the Veteran's hearing loss disability on occupational functioning and daily activities.  See Martinak v. Nicholson, 21 Vet. App. 447 (2007).  In this case, the October 2008 and May 2010 VA examination reports note complaints, such as difficulty understanding speech when people are not facing the Veteran and asking for repetitions.  The Veteran provided a description of the impact of his left ear hearing loss on his daily life in his Notice of Disagreement received by VA in June 2009 and at the March 2010 DRO hearing.  The combined record of the Veteran's statements and the descriptions contained in the VA examination reports are sufficient to determine that the schedular ratings criteria are adequate to rate the Veteran's left ear hearing loss disability.  The Board concludes the October 2008 and May 2010 VA examinations are adequate based upon which to base a decision.  

Disability Ratings

The Veteran contends that he is entitled to an initial compensable rating for his left ear hearing loss.  For the reasons that follow, the Board concludes that an increased initial rating is not warranted.

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations.  Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.1 (2012).  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2012).  However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided.  38 C.F.R. § 4.14 (2012). 

In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second.  38 C.F.R. § 4.85 (2012).  The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness.  VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a puretone audiometry test.  The vertical lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  The horizontal columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss.

The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity.  For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent.  See 38 C.F.R. § 4.85.  As the Veteran does not have a right ear hearing loss disability, the right ear will be assigned a numeric designation of "I" throughout the period on appeal.

The Board has considered the lay statements submitted by and testimony from the Veteran and is aware of the complaints about the Veteran's inability to hear well.  The Veteran is competent to describe his hearing loss.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  The Board emphasizes that disability ratings are derived by a mechanical application of the rating schedule.  Lendenmann, 3 Vet. App. at 349.  The Veteran's description of his service-connected disability does not rise to the level of accuracy and specificity required to apply to the rating criteria.  Thus, the Board must rely the results of the audiology studies of record to reach a decision in this case.  

A change in law occurred during the pendency of this appeal.  The Veteran filed his claim for service connection for hearing loss in September 2008, prior to his discharge from service in October 2008.  At that time, the law required that the non-service connected ear be considered normal when rating unilateral hearing loss, except when such hearing loss in the non-service-connected ear would be independently rated as compensably disabling.  See 38 C.F.R. § 3.383 (2008).  Now, the law allows for compensation for bilateral hearing loss as if both ears were service-connected if the service-connected hearing loss is ratable as at least 10 percent disabling and the non service-connected hearing loss meets the standard for a hearing loss disability for VA purposes under 38 C.F.R. § 3.385 unless the non service-connected hearing loss is the result of the Veteran's willful misconduct.  See 38 C.F.R. § 3.383 (2012); see also 74 Fed. Reg. 11,483 (Mar. 18, 2009).  

Schedular Rating for Left Ear Hearing Loss

As will be shown in the audiometric evidence below, the Veteran does not have a right ear hearing loss disability for VA purposes.  For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2012).  The right ear puretone thresholds did not exceed 20 dB in any of the relevant ranges at any test prior to the Veteran's discharge from service or thereafter.  The Veteran's speech recognition scores for the right ear were not less than 94 percent at any test on record prior to the Veteran's discharge from service or thereafter.  The Board finds that the Veteran does not have a right ear hearing loss disability for VA purposes.  Thus, the change in law regarding unilateral service-connected hearing loss does not alter the outcome of the case as to the schedular rating.  Where a hearing loss disability does not exist, the right ear cannot be independently rated as compensably disabling under the prior 38 C.F.R. § 3.383.  Similarly, the right ear cannot be rated as though service-connected where a disability does not exist under the current 38 C.F.R. § 3.383.  

The Veteran underwent two in-service audiograms in July 2008, just prior to his discharge.  At the first July 2008 audiological examination, puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
15
5
5
LEFT
15
15
15
20
35

At the second July 2008 audiological examination, puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
10
5
5
LEFT
10
10
10
20
30

Speech recognition ability was recorded only at the second examination, with a 100 percent in the right ear and either 100 or 96 percent in the left ear.  The Board will use the worse, 96 percent score in evaluating the Veteran to afford him reasonable doubt.

On VA audiological evaluation in October 2008, puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
5
5
5
LEFT
10
10
10
20
30

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 92 percent in the left ear.

The Veteran has submitted a hearing summary from his employer showing two hearing tests in October 2008 and January 2010.  In October 2008, puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
15
5
5
LEFT
5
10
5
15
25

In January 2010, puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
10
5
10
LEFT
10
15
10
15
30

Speech recognition ability was not tested on either occasion.  The January 2010 examination results included a note that the left ear had worsened since the October 2008 examination.  

The Veteran underwent another VA audiological evaluation in May 2010.  Puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
10
5
0
LEFT
15
15
10
10
25

Speech audiometry revealed speech recognition ability of 94 percent in both ears.

Using Table VI in 38 C.F.R. § 4.85, the puretone average and speech recognition score are combined to give each ear a numeric designation for use on Table VII to determine the correct disability level.  Neither the first July 2008 in-service audiometric test nor the October 2008 and January 2010 audiometric tests are adequate for ratings purposes because they do not include contemporaneous speech recognition scores.  At the second July 2008 in-service audiometric evaluation, the left ear had a puretone average of 17.5 dB and a speech recognition score of 96 percent.  At the October 2008 VA audiometric evaluation, the left ear had a puretone average of 17.5 dB and a speech recognition score of 92 percent.  At the May 2010 VA audiometric evaluation, the left ear had a puretone average of 15 dB and a speech recognition score of 94 percent.  The left ear received a designation of I based on the second July 2008 service test, the October 2008 VA test, and the May 2010 VA test.  As stated, the right ear receives an I designation.  The point where I and I intersect on Table VII then reveals the disability level for the Veteran's hearing loss, which in this case does not reach a compensable level.  See 38 C.F.R. § 4.85.

The regulations have two provisions for evaluating veterans with certain patterns of hearing impairment that cannot always be accurately assessed under § 4.85 because the speech discrimination test may not reflect the severity of communicative functioning that these veterans experience.  See 64 Fed. Reg. 25203 (May 11, 1999).  38 C.F.R. § 4.86(a) indicates that if puretone thresholds in each of the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more, an evaluation can be based either on Table VI or Table VIa, whichever results in a higher evaluation.  38 C.F.R. § 4.86(b) indicates that when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa, whichever results in the higher numeral, and that numeral will then be elevated to the next higher Roman numeral.  In this case, the audiometric results do not show a puretone threshold exceeding 40 dB.  The scores do not meet these criteria, and the Veteran's left ear hearing loss disability cannot be evaluated under the alternative rating scheme.  See 38 C.F.R. § 4.86.  

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).  Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged."  Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007).  The Board has considered the possibility of staged ratings.  The preponderance of the evidence does not demonstrate that a compensable rating was warranted at any given time based on either the standard approach under Table VII or exceptional hearing loss patterns.  As the evidence does not demonstrate that a compensable rating was warranted at any given time, the Board concludes that the criteria for a compensable rating have at no time been met.  Accordingly, staged ratings are inapplicable.  See id.  

Extraschedular Rating for Left Ear Hearing Loss

The Board has also considered whether a referral for extraschedular rating is warranted.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule; therefore, the assigned schedular evaluation is adequate, and no referral is required.  See VAOPGCPREC 6-96; see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (a threshold finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate is required for extraschedular consideration referral).  

The schedular evaluation for the Veteran's left ear hearing loss is not inadequate.  At the October 2008 VA examination, the Veteran indicated difficulty understanding speech when people are not facing him.  The Veteran stated that he could filter out background noise when listening to audio through a headset, but could not do that in a normal outside environment in his Notice of Disagreement received by VA in June 2009.  At the March 2010 DRO hearing, he reported that he held the phone to his right ear and that he had to be focused right at a person speaking to him to discriminate the words.  At the May 2010 VA examination, he reported that he had to ask for repetitions and listen to the car radio louder than before.  The Veteran's complaints go to speech recognition ability, which is one of the bases of the ratings criteria and was expressly used to arrive at the noncompensable schedular rating.  See 38 C.F.R. §§ 4.85, 4.86.  The Veteran disagrees with the assigned evaluation for his level of impairment.  In other words, he does not have any symptoms from his service-connected disorder that are unusual or are different from those contemplated by the schedular criteria.  The available schedular evaluations reasonably describe the service-connected left ear hearing loss; thus, the schedular evaluations are adequate to rate the Veteran's left ear hearing loss disability.  The Board need not determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms" such as "marked interference with employment" and "frequent periods of hospitalization."  See Thun, 22 Vet. App. at 115.  Referral for extraschedular consideration is not warranted.  See VAOPGCPREC 6-96.  

As such, the Board finds that the preponderance of the evidence is against the Veteran's increased initial rating claim.  Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

An initial compensable rating for left ear hearing loss is denied.




____________________________________________
K.J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs