Citation Nr: 1324984	
Decision Date: 08/06/13    Archive Date: 08/13/13

DOCKET NO.  10-01 981	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entailment to greater than a 10 percent initial rating for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Tennessee Department of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. M. Kirby, Counsel


INTRODUCTION

The Veteran served on active duty from January 1967 to January 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.  The Veteran testified at a March 2011 hearing held at the RO before the undersigned.  A transcript of that hearing is associated with the claims file.

The Veteran's appeal was previously remanded in April 2013 so that outstanding VA treatment records could be obtained, a VA examination conducted, and a clarification obtained from the Veteran's private treating audiologist.  Review of the claims file reveals that these directives have been accomplished.  Because there has been substantial compliance with the remand directives, additional remand is not required.  See Stegall v. West, 11 Vet. App. 268 (1998).


FINDING OF FACT

The Veteran's hearing loss is manifested by, at worst, Level VI hearing acuity in the right ear and by, at worst, Level III hearing acuity in the left ear.


CONCLUSION OF LAW

The criteria for an initial rating greater than 10 percent for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012).

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REASONS AND BASES FOR FINDING AND CONCLUSION

VA has met all statutory and regulatory notice and duty to assist provisions.  See 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, 3.326 (2012).  A May 2009 letter satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained; clarification of the March 2011 private audiology evaluation was obtained on remand.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010).  The August 2009 and May 2013 VA examinations were adequate for rating purposes; each examination considered the Veteran's reports of his situations of greatest hearing difficulty and the effect of his hearing loss on his daily life, as well as conducted a complete audiogram and word recognition testing.  38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007).

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the Board hearing, the undersigned noted the elements of the claim that were lacking to substantiate a claim for an increased rating for hearing loss.  The Veteran was assisted at the hearing by an accredited representative who, along with the undersigned, asked questions to ascertain the Veteran's current level of disability.  The record does not reflect that pertinent evidence that would substantiate the claim was identified by the Veteran or the representative, other than the clarification of the March 2011 private audiological testing (which was obtained on remand).  The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he understood the elements necessary to substantiate his claim.  Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing.  Therefore, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c) (2).

Review of the record does not indicate that additional evidence pertinent to the issue adjudicated in this decision is available, but not associated with the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication VA did not provide sufficient notice or assistance, such that it reasonably affects the outcome of the case, the Board finds that any such lack of sufficient notice is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).  

Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012).  Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21 (2012); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).  

The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability.  Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply.  Fenderson v. West, 12 Vet. App. 119 (1999).  Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports.  Id.  VA has a duty to consider the possibility of assigning staged ratings in all claims for increase.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  

Evaluations of 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 as measured by puretone audiometric tests.  To evaluate the degree of disability resulting from service-connected hearing loss, the Schedule establishes eleven levels of impaired efficiency, numerically designated from Level I to Level XI.  Level I represents essentially normal hearing acuity for VA compensation purposes, with hearing loss increasing with each level to the profound deafness represented by Level XI.  38 C.F.R. § 4.85, Tables VI, VII (2012). 

At the August 2009 VA examination, speech audiometry revealed speech recognition ability of 80 percent, bilaterally; puretone thresholds were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
15
45
55
LEFT
15
15
40
65
80


A March 2011 private audiological evaluation is of record, the original report of which did not specify which word recognition test word list was used.  Consequent to the April 2013 Board remand, a clarification was requested from that audiologist; in May 2013, a response was received noting that the NU6 word list was used.  On this basis, the Board finds that unfortunately, the March 2011 private evaluation does not conform to the regulatory requirements.  See 38 C.F.R. § 3.385; see also 38 C.F.R. §§ 4.85, 4.86 (2012).  Evaluations of hearing acuity must use the Maryland CNC word test list to be considered in rating a veteran's hearing acuity for VA purposes.  Accordingly, the results from this examination cannot be considered probative.

At the May 2013 VA examination, the Veteran reported that the daily effects of his hearing loss were that he had trouble hearing without his hearing aids.  Speech audiometry revealed speech recognition ability of 76 percent in the right ear and 64 percent in the left ear; puretone thresholds were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
25
55
60
LEFT
20
25
55
65
85


Applying the rating criteria results in a Level III hearing acuity for the right ear based on either the August 2009 or the May 2013 clinical findings.  See 38 C.F.R. § 4.85, Table VI.  Similarly, applying the rating criteria results in Level IV hearing acuity for the left ear based on the August 2009 clinical findings, and a Level VI hearing acuity based on the May 2013 clinical findings.  Id.  Applying these numeral designations to Table VII results in a 10 percent initial disability rating for bilateral hearing impairment, no matter which results are used.  38 C.F.R. §§ 3.383, 4.85(f), (h) (2012).  Thus, greater than a 10 percent initial rating is not supported by the evidence of record.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

When the puretone decibel loss values are 55 or greater at 1000 Hertz, 2000 Hertz, 3000 Hertz, and 4000 Hertz in either ear, or 30 or less at 1000 Hertz and 70 or more at 2000 Hertz, the criteria for exceptional patterns of hearing impairment must be considered.  38 C.F.R. § 4.86(a) (2012).  However, none of the examination results dated during the appeal period reflects an exceptional pattern of hearing impairment in either ear; as such, the criteria in 38 C.F.R. § 4.86(a) does not apply. 

An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 115-116.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation.  38 C.F.R. § 3.321(b) (1) (2012).  Otherwise, the schedular evaluation is adequate, and referral is not required.  Thun, 22 Vet. App. at 116.

The schedular rating is adequate.  Ratings in excess of that assigned are provided for more severe manifestations of hearing loss, but the medical evidence reflects that those symptoms are not present.  The Veteran describes the impact of his hearing loss disability as difficulty hearing without his hearing aids.  Such impairment in hearing acuity is specifically contemplated by the schedular rating schedule.  Thus, the Board finds that the Veteran's disability picture is contemplated by the Rating Schedule and that no extraschedular referral is required.

The preponderance of the evidence is against the claim.  There is no doubt to be resolved, and an initial rating greater than 10 percent disabling for bilateral hearing loss is not warranted.  See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

An initial rating greater than 10 percent disabling for bilateral hearing loss is denied.



____________________________________________
M. N. HYLAND
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs