Citation Nr: 1325333	
Decision Date: 08/09/13    Archive Date: 08/13/13

DOCKET NO.  07-17 884	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to a compensable evaluation for right ear hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

D. Whitehead, Counsel

INTRODUCTION

The Veteran had active duty service from January 1963 to December 1965.  This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.

The case was most recently before the Board in September 2012, at which time the Board remanded the claim to the RO via the Appeals Management Center (AMC) for additional development and adjudicative action.  In February 2013 Supplemental Statement of the Case, the AMC continued the denial of the claim.  The case has now been returned to the Board for further appellate review.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The evidence of record shows no worse than Level IV hearing acuity in the Veteran's right ear.


CONCLUSION OF LAW

The criteria for a compensable evaluation for right ear hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012).






REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  

They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  

The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The record reflects that the Veteran was provided all required notice in a letter mailed in October 2006.  He was provided notice of the applicable diagnostic code in a March 2007 Statement of the Case.  Although the March 2007 notice was provided after the initial adjudication of the claim, the claim was readjudicated, with the most recent readjudication occurring in the February 2013 Supplemental Statement of the Case.  

The Board finds that VA's duty to assist the Veteran has also been satisfied.  The Veteran's service treatment records and relevant post-service VA medical records are of record.  Neither the Veteran nor his representative has alleged that there is any existing, outstanding evidence that could be obtained to substantiate the claim.  The Board is also unaware of any such evidence.

The Veteran was provided VA examinations with respect to his claim, with the first examination occurring in November 2006.  His disability was further assessed during a February 2010 examination.  In the September 2012 remand, the Board found that this examination report did not adequately address the effect of the disability on the Veteran's daily life and directed that an opinion in this regard be obtained from the VA examiner.  The Veteran was afforded an additional examination in November 2012, which addressed the effect and severity of his right ear hearing loss disability.  Collectively, the Board finds that the VA examinations are adequate in that the examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his service-connected disability under the applicable rating criteria.  Additionally, there is also no objective evidence indicating that there has been a material change in the severity of the Veteran's right ear hearing loss since the most recent November 2012 VA examination.  The Board finds that there has been substantial compliance with its September 2012 remand.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

Accordingly, the Board will address the merits of the claim.

Increased Rating for Right Ear Hearing Loss

The Veteran is seeking a compensable evaluation for his service-connected right ear hearing loss. 

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4.  The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  See 38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present.  See 38 C.F.R. § 4.2; Peyton v. Lewinski, 1 Vet. App. 282 (1991).  Staged ratings are appropriate when the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  

The severity of a hearing loss disability is determined by comparisons of audiometric test results with specific criteria set forth in the Rating Schedule.  38 C.F.R. § 4.85.  Evaluations of bilateral 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 level as measured by puretone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz.  The audiometric test results are then translated into a numeric designation ranging from Level I to Level XI, in order to evaluate the degree of disability from bilateral service-connected defective hearing.  38 C.F.R. § 4.85.

When evaluating hearing impairment which is service-connected in only one ear, the nonservice-connected ear will be assigned a Roman numeral designation for hearing impairment of Level I for purposes of applying Table VII.  See 38 C.F.R. § 3.383; see also 38 C.F.R. § 4.85(f).

The rating criteria also provide for rating exceptional patterns of hearing impairment.  See 38 C.F.R. § 4.86.  If the puretone threshold is greater than 55 decibels at each of four specified frequencies, 1000 Hertz, 2000 Hertz, 3000 Hertz and 4000 Hertz, VA must 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(a).  If the puretone threshold is 30 decibels or less at 1000 Hertz and simultaneously 70 decibels or more at 2000 Hertz, VA must 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 highest numeral for consideration.  Each ear is evaluated separately.  38 C.F.R. § 4.86(b).

By way of history, the RO granted service connection for hearing loss in the right ear by way of a May 1969 rating decision.  A noncompensable rating was assigned effective from November 1968.  In October 2006, the Veteran filed the claim for an increased rating currently on appeal.

The Veteran underwent a VA audiological examination in November 2006.  The authorized audiological evaluation revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
35
50
65
70
LEFT
35
35
50
65
80

The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 55 decibels in the right ear and 58 decibels in the left ear.  The report also noted speech recognition ability of 82 percent in the right ear and 76 percent in the left ear.  These findings demonstrate that under Table VI of the Rating Schedule, the Veteran's right ear hearing impairment was manifested by Level IV hearing acuity and did not qualify as an exceptional pattern of hearing impairment.  See 38 C.F.R. § 4.85, Table VI; see also 38 C.F.R. § 4.86(a).  Using Table VII, Level IV hearing acuity in the service-connected right ear and Level I hearing acuity in the nonservice-connected left ear results in a noncompensable evaluation for right ear hearing impairment.  See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100.

In letters submitted in January 2007 and March 2011, the Veteran's spouse described her observations with regards to his hearing loss.  She described the Veteran's difficulty hearing a car horn and stated that she had to speak loudly whenever they rode in the Veteran's truck.  She relayed that he had difficulty hearing finer or high pitched sounds and expressed her concern about the potential dangers he could face due to his decreased hearing.  She also described his difficulty hearing without his hearing aids.  

The Veteran described his hearing loss in a statement submitted in January 2007 and on his March 2007 VA Form 9.  He stated that he had difficulty hearing in numerous situations, to include hearing someone at the door, a ringing telephone, and both in-person and telephone conversations.

A July 2009 VA audiological consultation record shows further assessment of the Veteran's right ear hearing loss.  The Veteran was fitted for hearing aids and was noted to have not used hearing devices previously.  On the audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
35
60
75
90
LEFT
35
35
50
70
85

The average puretone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 65 for the right ear and 60 for the left ear.  Speech recognition scores were reported as 88 percent for the right ear and 84 percent for the left ear.  Under 38 C.F.R. § 4.85, using Table VI, these findings correspond to Level III hearing for the right ear.  The hearing acuity for the right ear did not qualify as an exceptional pattern of hearing impairment.  See 38 C.F.R. § 4.85, Table VI; see also 38 C.F.R. § 4.86(a).   Using Table VII, Level III hearing acuity in the service-connected right ear and Level I hearing acuity in the nonservice-connected left ear results in a noncompensable evaluation for right ear hearing impairment.  See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100.

In February 2010, the Veteran underwent an additional VA audiological examination.  The audiometric testing revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
45
55
75
80
LEFT
45
50
60
75
85

The average puretone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 64 for the right ear and 68 for the left ear.  Speech audiometry revealed speech recognition ability of 78 percent in the right ear and of 82 percent in the left ear.  Under 38 C.F.R. § 4.85, using Table VI, these findings correspond to Level IV hearing for the right ear.  The hearing acuity for the right ear did not qualify as an exceptional pattern of hearing impairment.  See 38 C.F.R. § 4.85, Table VI; see also 38 C.F.R. § 4.86(a).  Using Table VII, Level IV hearing acuity in the service-connected right ear and Level I hearing acuity in the nonservice-connected left ear results in a noncompensable evaluation for right ear hearing impairment.  See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100.

In November 2012, the Veteran underwent an additional VA examination, at which time the examination revealed a continued diagnosis of sensorineural hearing loss.  On the audiometric evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
45
60
75
80
LEFT
35
40
60
80
85

Puretone averages at 1,000, 2,000, 3,000, and 4,000 Hertz was 65 for the right ear and 66 for the left ear.  Speech recognition scores were reported as 80 percent, bilaterally.  These findings demonstrate that under Table VI of the Rating Schedule, the Veteran's right ear hearing impairment was manifested by Level IV hearing acuity and did not qualify as an exceptional pattern of hearing impairment.  See 38 C.F.R. § 4.85, Table VI; see also 38 C.F.R. § 4.86(a).  Using Table VII, Level IV hearing acuity in the service-connected right ear and Level I hearing acuity in the nonservice-connected left ear results in a noncompensable evaluation for right ear hearing impairment.  See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100.

The November 2012 examiner noted that the Veteran's hearing loss disability impacted his daily life, including his ability to work.  In reaching this determination, the examiner specifically noted the Veteran's report of having difficulty understanding his wife.  The Veteran also reported that he had hearing aids, but that he did not use them at work because of background noise and chemicals.  

In a December 2012 addendum report, the November 2012 examiner indicated that the claims file was reviewed and reported the findings of the November 2012 examination.      

Based on the record, the Board finds that the medical evidence does not demonstrate an entitlement to a compensable disability rating for the Veteran's right ear hearing loss under Tables VI and VII of the regulations.  As explained above, the medical evidence reflects that under Tables VI and VII of the regulations, the mechanical application of the November 2006, May 2009, February 2010, and November 2012 audiological examinations results does not compel a compensable disability rating for the Veteran's right ear hearing disability.  See  38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100.  As his right ear hearing acuity also does not warrant qualify as an exceptional pattern of hearing impairment, consideration of 38 C.F.R. § 4.86(a) is not warranted.  Thus, the criteria for a higher disability rating are not met in this case.

In reaching this determination, the Board has considered the statements from the Veteran and his wife regarding his hearing loss disability.  The Veteran and his spouse are certainly competent to report the Veteran's symptoms.  See generally Barr v. Nicholson, 21 Vet. App. 303 (2007) (a Veteran is competent to testify as to the continuity of symptomatology capable of lay observation).  However, to the extent that he has stated that his service-connected right ear hearing loss warrants a higher evaluation and has provided a lay statement describing the severity of his disability, the medical findings do not support his contentions.  The Board attaches greater probative weight to the clinical findings of skilled, unbiased professionals than to the Veteran or his wife's statements.  Moreover, the assignment of disability evaluations based on hearing impairment is primarily based upon a mechanical application of the rating criteria, as explained and applied herein.

Generally, evaluating a disability using either the corresponding or the analogous diagnostic codes contained in the Rating Schedule is sufficient.  See 38 C.F.R. §§ 4.20, 4.27.  However, because 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.  However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating.  38 C.F.R. § 3.321(b).

The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Id.; see also Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 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, 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. at 115.  If the criteria reasonably describe the Veteran's disability level and symptomatology, the Rating Schedule contemplates the Veteran's disability picture, and the assigned schedular evaluation is adequate, and no referral is required.

The Board finds that the Veteran's right ear hearing disability picture is not so unusual or exceptional in nature as to render the assigned rating inadequate.  The Veteran's service-connected right ear hearing loss is evaluated based on impairment of auditory acuity pursuant to Diagnostic Code 6100, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability.  38 C.F.R. § 4.85.  Over the period of the appeal, the Veteran's right ear hearing impairment was manifested by no more than a numeric designation of Level IV.  Id.  Moreover, in specific cases of hearing impairment, such as the Veteran's, the Rating Schedule provides for exceptional patterns of hearing loss.  38 C.F.R. § 4.86.  The examiners considered the Veteran's lay statements regarding his hearing difficulty.  The Board recognizes that the November 2012 examiner opined that the Veteran's right ear hearing loss impacts his daily life in that he has difficulty hearing his wife and does not wear his hearing aids at work.  However, there is no evidence of record showing that his functional impairment is so significant as to render the currently assigned disability rating inadequate.  Compensable ratings are provided for by the regulations for certain manifestations of hearing loss, but the medical evidence demonstrates that those manifestations are not present.  Consequently, the Board concludes that the schedular evaluation is adequate and that referral of the issue for extraschedular consideration is not required.  See 38 C.F.R. § 4.85, 4.86, Diagnostic Code 6100; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996).

Disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Thus, based on the audiometric findings, the noncompensable rating already assigned to the Veteran's service-connected right ear hearing loss is appropriate, and entitlement to a compensable evaluation is not warranted at any time during the appeal period.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

In reaching this decision, the Board considered the doctrine of reasonable doubt.  However, as the preponderance of the evidence is against the Veteran's claim of entitlement to a compensable evaluation for right ear hearing loss, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

A compensable evaluation for hearing loss in the right ear is denied.



____________________________________________
WILLIAM YATES
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs