Citation Nr: 1325268	
Decision Date: 08/09/13    Archive Date: 08/13/13

DOCKET NO.  10-07 232	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida



THE ISSUE

Entitlement to higher initial ratings for bilateral hearing loss, evaluated as noncompensable prior to March 7, 2009; and, 10 percent disabling as of March 7, 2009.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. Grabia, Counsel



INTRODUCTION

The Veteran had active service in the United States Marine Corps from August 1959 to May 1960. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for bilateral hearing loss assigning a noncompensable rating from August 3, 2006 and a 10 percent rating from March 7, 2009. 

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.



FINDINGS OF FACT

1.  During the appeal period, prior to March 7, 2009, bilateral hearing loss disability has been manifested, by Level I hearing loss in the right ear and Level IV in the left ear.  

2.  During the appeal period, since March 7, 2009, bilateral hearing loss disability has been manifested, at worst, by Level III hearing loss in the right ear and Level IV in the left ear.  


CONCLUSION OF LAW

The criteria for a compensable disability evaluation for bilateral hearing loss prior to March 7, 2009; and, in excess of 10 percent as of March 7, 2009, for bilateral hearing loss disability have not been met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code (DC) 6100 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  VCAA

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

This appeal arises from disagreement with the initial rating following the grant of service connection.  Once service connection is granted, the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not required.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

There has also been compliance with the VCAA assistance requirements.  The record in this case includes service treatment records, a VA examination report and medical opinion that contains all finding needed to rate the disability, VA and private treatment records, and lay evidence.  

The VA examination included the findings needed to rate the hearing loss disability in accordance with the requirements of 38 C.F.R. §§ 4.85, 4.86.  It also included a description of the functional effects caused by a hearing disability as required by Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  

Medical records obtained or created by the Social Security Administration (SSA) are also of record.  The actual SSA decision is not of record.  The SSA medical records do not include findings referable to hearing loss, and there is no evidence or contention that benefits were awarded on the basis of hearing loss.  As such, there is no reasonable possibility that the SSA decisions could substantiate entitlement to a higher rating for hearing loss.  Hence, there is no need for further efforts to obtain those documents.  Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010).  There is no indication of any other evidence that would be reasonably likely to substantiate entitlement to higher initial ratings, further assistance is therefore unnecessary.  38 C.F.R. § 3.159(c).  

II.  Factual Background

The Veteran filed an original disability claim in August 2006.  

West Palm Beach VAMC records for the period from August 2006 to November 2008, include an initial audiology consult dated in August 2006.  Pure tone thresholds, in decibels, were as follows:

HERTZ
1000
2000
3000
4000
RIGHT
20
60
65
70
LEFT
20
65
75
80

Average pure tone thresholds, in decibels (dB), were 54 dB for the right ear and 60 dB for the left ear.  Speech audiometry as measured by the Maryland CNC revealed speech recognition scores of 100 percent in the right ear and 76 percent in the left ear.  The diagnosis was bilateral and symmetrical high frequency hearing loss.

A June 2007 audiology report from Rogers Hearing Solutions, reported pure tone thresholds, in decibels, were as follows:

HERTZ
1000
2000
3000
4000
RIGHT
25
40
60
70
LEFT
25
45
75
75

Average pure tone thresholds, in decibels (dB), were 49 dB for the right ear and 55 dB for the left ear.  Although loudness discomfort and most comfortable levels of hearing thresholds were reported; no speech discrimination percentages were recorded.  The portion of the examination were speech audiometry would have been recorded was blank.  

In a March 7, 2009 VA examination, pure tone thresholds, in decibels, were as follows:

HERTZ
1000
2000
3000
4000
RIGHT
25
65
70
70
LEFT
20
70
75
75

Average pure tone thresholds, in decibels (dB), were 58 dB for the right ear and 60 dB for the left ear.  Speech audiometry as measured by the Maryland CNC revealed speech recognition scores of 88 percent in the right ear and 76 percent in the left ear.  The diagnosis was bilateral and symmetrical high frequency hearing loss.

III.  Criteria

Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1 (2012).  VA must interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately compensate the elements of disability.  38 C.F.R. § 4.2 (2012).  

VA will also resolve any reasonable doubt regarding the degree of disability in favor of the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3 (2012).  Where there is a question as to which of two ratings applies, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).  

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21 (2012). 

VA must also evaluate functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity.  38 C.F.R. § 4.10 (2012).

In the case of an initial rating the Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal.  Fenderson v. West, 12 Vet. App. 119 (1999).

In rating a disability, the Board cannot consider factors outside the applicable rating criteria.  Massey v. Brown, 7 Vet. App. 204, 208 (1994).

A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992). 

The severity of hearing loss is determined by comparison of audiometric test results with specific criteria.  38 C.F.R. § 4.85, Diagnostic Codes 6100-6110.  

Ratings for bilateral defective hearing range from 0 percent 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 Hertz.  The Schedule allows for audiometric test results to be translated into a numeric designation ranging from Level I to Level XI, for profound deafness, in order to rate the degree of disability from bilateral service-connected defective hearing.  The ratings derived from the Schedule are intended to make proper allowance for improvement by hearing aids.  In addition, an examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test.  Examinations are to be conducted without the use of hearing aids.  38 C.F.R. § 4.85.

When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 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.  38 C.F.R. § 4.86 (2012).  Further, when the average puretone threshold is 30 decibels 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 (2012).

V.  Analysis

a.  Prior to March 7, 2009

In considering the evidence of record under the laws and records as set forth above, the Board concludes that the Veteran is not entitled to a compensable evaluation for his bilateral hearing loss for the period prior to March 7, 2009, under 38 C.F.R. §§ 4.85 or 4.86, Diagnostic Code 6100.  In this regard, the results of the August 2006 VA audio evaluation corresponds to Level I hearing for the right ear and Level III in the left ear on Table VI, which in turn corresponds to a 0 percent rating on Table VII. 

The Veteran's representative has argued that the RO ignored the June 2007 audiology consult from Rogers Hearing Solutions, and that this audiology consultation would have shown entitlement to a compensable evaluation.  

An examination for hearing impairment must; however, include a controlled speech discrimination testing using the Maryland CNC word list.  38 C.F.R. § 4.85 (2012).  The June 2007 evaluation report; however, does not include speech discrimination testing.  As such it does not include the findings needed to rate the Veteran's disability.  

If certain patterns of exceptional hearing are shown, hearing loss may be rated on the basis of pure tone averages alone.  38 C.F.R. § 4.86.  Inasmuch as the June 2007 test did not show puretone thresholds of 55 dB or more at all four frequencies or a puretone threshold of 30 dB or less at 1000 Hertz. and a threshold of 70 dB or more at 2000 Hertz.; the test did not show an exceptional pattern of hearing loss.  Even if it could be rated on this basis, the private testing would have yielded findings of Level III hearing loss in each ear, which would have warranted a noncompensable rating.  38 C.F.R. § 4.85, Table VIA.

 The Board notes that prior to March 7, 2009, evidence of record simply does not show that the Veteran had hearing loss that approximated the criteria for a compensable rating. 

The Board has also considered whether a compensable evaluation for hearing loss is warranted under 38 C.F.R. § 4.86.  The Veteran's disability, however, did not meet the requirements of 38 C.F.R. § 4.86.  In this regard, the Veteran did not have puretone thresholds of 55 decibels or more at each of the frequencies of 1000, 2000, 3000 and 4000 hertz or a puretone threshold of 30 decibels or less at 1000 hertz and 70 decibels or more at 2000 hertz.  As such, it is apparent that the currently assigned noncompensable disability evaluation for the Veteran's bilateral hearing loss is accurate and appropriately reflects his hearing loss under the provisions of 38 C.F.R. §§ 4.85 and 4.86(a).  

The Veteran has pointed out that he was fitted for hearing aids near the time of his claim for service connection in 2006.  The rating criteria; however, do not provide for a higher rating on the basis of the use of hearing aids; although examinations do test hearing without the use of hearing aids.  38 C.F.R. § 4.85(a).

Thus, as the criteria for a compensable evaluation for the Veteran's service-connected bilateral hearing loss for the period prior to March 7, 2009, have not been met, the appeal is denied.  In essence, the preponderance of the evidence is against a compensable evaluation for the Veteran's bilateral hearing loss prior to March 7, 2009 

b.  Since March 7, 2009

The results of the March 7, 2009 VA audiological examination corresponds to Level III hearing for the right ear and Level IV for the left ear on Table VI, which in turn corresponds to a 10 percent rating on Table VII.   

There have been no other reported hearing examinations during this period.   Board notes that from March 7, 2009, evidence of record simply does not show that an evaluation in excess of 10 percent was warranted for bilateral hearing loss. 
 
The Veteran's disability also did not meet the requirements of 38 C.F.R. § 4.86.  Puretone thresholds were not all at 55 decibels or more at each of the frequencies of 1000, 2000, 3000 and 4000 hertz or a puretone threshold of 30 decibels or less at 1000 hertz and 70 decibels or more at 2000 hertz.  As such, the weight of the evidence is against a rating in excess of 10 percent since March 2009.  38 C.F.R. §§ 4.85 and 4.86(a).  

Thus, as the criteria for an evaluation in excess of 10 percent for the Veteran's service-connected bilateral hearing loss for the period from March 7, 2009 have not been met, the appeal is denied.  In essence, the preponderance of the evidence is against an evaluation greater than 10 percent for the Veteran's bilateral hearing loss since March 7, 2009.  Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply.  As such, entitlement to an evaluation in excess of 10 percent for service-connected bilateral hearing loss since March 7, 2009, must be denied.  

The Board notes that the Veteran is retired at this time and in receipt of Social Security age related benefits.  

The August 2006 VA audiologist noted the Veteran reported gradual hearing loss and communications difficulty.  The clinician noted a mild hearing handicap and fitted the Veteran with hearing aids.  The March 2009 VA audiologist noted good right ear and fair left ear word recognition.  The Veteran reported that he missed out in conversations and misunderstands sometimes due to background noises.  He worked at Home Depot and his hearing aids help him, but he needed to focus his attention when in a conversation.  

The Board finds that there is mild functional impact on his ability to work and on his activities of daily living.  

For all the foregoing reasons, the Veteran's claims for entitlement to a compensable disability evaluation for bilateral hearing loss prior to March 7, 2009; and, in excess of 10 percent since March 7, 2009, for bilateral hearing loss must be denied.  The Board has considered staged ratings, under Hart v. Mansfield, 21 Vet. App. 505 (2007), but concludes that they are not warranted.  Since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

VI.  Extraschedular consideration

Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. 38 C.F.R. §§ 4.20, 4.27 (2012).  Because, however, the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability.  Nonetheless, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating.  38 C.F.R. § 3.321(b) (2012). 

The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available scheduler evaluations for that service-connected disability are inadequate. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115.  If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned scheduler evaluation is, therefore, adequate, and no referral is required. 

The Veteran's service-connected bilateral hearing loss is evaluated as impairment of auditory acuity pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100, the criteria of which is found by the Board to specifically contemplate the levels of occupational and social impairment caused by this disability.  

The rating criteria contemplate the disability resulting from impaired hearing.  The Veteran has not reported symptoms that are not contemplated by the rating schedule.  As noted earlier he has pointed to his use of hearing aids as evidence of the severity of his disability, but he has not reported additional disability from the use of hearing aids, and the rating criteria evaluate hearing loss without the benefits that might accrue from the use of such aids.  When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's disability is congruent with the rating criteria.  

Total Rating

Although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable due to his service-connected bilateral hearing loss; therefore, the question of entitlement to a total disability rating based on individual unemployability has not been raised.  See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). 

Reasonable Doubt

As discussed, the weight of the evidence is against higher initial ratings for hearing loss.  Because the evidence is not in at least equipoise, reasonable doubt does not arise and the appeal is denied.  38 U.S.C.A. § 5107(b).


ORDER

Entitlement to higher initial ratings for hearing loss is denied.



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs