Citation Nr: 1325571	
Decision Date: 08/13/13    Archive Date: 08/16/13

DOCKET NO.  12-30 855A	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to a compensable rating for bilateral hearing loss.

2.  Entitlement to a rating in excess of 10 percent for tinnitus.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Terrence T. Griffin, Counsel





INTRODUCTION

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

The Veteran had active service from November 1952 to October 1954.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 decision of the St. Petersburg, Florida, Regional Office (RO).


FINDINGS OF FACT

1.  The right ear hearing loss disability is manifested by an average puretone threshold, in decibels, of 58 with speech recognition of 80 percent (Level IV hearing loss).  

2.  The left ear hearing loss disability is manifest by an average puretone threshold, in decibels, of 56 with speech recognition of 84 percent (Level II hearing loss).  

3.  The maximum schedular rating of 10 percent has continuously been in effect for tinnitus.  


CONCLUSIONS OF LAW

1.  The criteria for a compensable rating for bilateral hearing loss are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.85, 4.86, Diagnostic Code 6100 (2012)

2.  The criteria for a rating in excess of 10 for tinnitus are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2012); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  

A June 2010 letter satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  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 an October 2012 statement of the case.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).   

In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices.  See Shinseki v. Sanders, 556 U.S. 396 (2009); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). 

The Veteran's service treatment records and VA medical treatment records have been obtained; he did not identify any private or VA treatment records pertinent to the appeal.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159 (c)(2).  VA examinations were conducted and opinions were obtained in July 2010 and September 2012.  The July 2010 VA examination is not adequate to rate the hearing loss disability because speech recognition scores are not reported; however, the September 2012 VA audiological examination is adequate for rating purposes, providing all required examination findings and sufficient evidence and opinion to make a fully informed assessment as to the nature, extent and severity of the disabilities.  38 C.F.R. § 3.159(c)(4); see also Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  

There is no indication in the record that any additional evidence, relevant to the issues decided, is available or is not part of the claim 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/Hartman, 19 Vet. App. at 486.  

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 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.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7.  

Bilateral hearing loss

The Veteran's service-connected bilateral hearing loss has been assigned a noncompensable disability evaluation under 38 C.F.R. § 4.85, Diagnostic Code 6100. 

Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second.  To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI.  In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met.  The assignment of disability ratings for hearing impairment is 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). 

The criteria for rating hearing impairment uses controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests.  These results are then charted on Table VI, Table VIA, in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule.  38 C.F.R. § 4.85.  An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. 

On VA audiological evaluation in July 2010, puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
25
55
55
55
LEFT
30
30
60
60
60

The average in the right ear was 47.5 decibels, and the average for the left ear was 52.5 decibels.  The examiner did not report speech recognition percentages.  

On VA audiological examination in September 2012, puretone thresholds, in decibels, were as follows:  




HERTZ



500
1000
2000
3000
4000
RIGHT
30
30
65
65
70
LEFT
35
25
65
70
65

The average in the right ear was 58 decibels, and the average for the left ear was 56 decibels.  Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 84 in the left ear.

The assignment of disability rating for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered.  The audiometry test results of the September 2012 VA examination equate to Level IV hearing in the right ear and Level II hearing in the left ear.  38 C.F.R. § 4.85, Table VI.  

Utilizing the only adequate audiometry test results of the September 2012 VA examination equate to Level IV hearing in the right ear and Level II hearing in the left ear.  38 C.F.R. § 4.85, Table VI.  

The record contains no certification of language difficulties, inconsistent speech audiometry scores, or sufficient pure tone threshold findings of 30 decibels or less, rendering the numeric designations contained in Table VIa inapplicable.  See 38 C.F.R. §§ 4.85(c), 4.86 (b).

Level IV hearing in the right ear and Level II hearing in the left ear, when applied to the Table VII percentage ratings for hearing impairment, result in a zero percent rating and a compensable rating for the bilateral hearing loss disability is not warranted.

Tinnitus

The VA Rating Schedule limits a Veteran to a single 10 percent rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral.  See Smith v. Nicholson, 541 F. 3d. 1344 (2006). 

A 10 percent rating for tinnitus has continuously been in effect and this is the maximum schedular rating available.  38 C.F.R. § 4.87, Diagnostic Code 6260; see also Smith.  There is no legal basis to award a higher schedular evaluation for tinnitus.  A rating in excess of 10 percent is not warranted for tinnitus.  Sabonis v. Brown, 6 Vet. App. 426 (1994).

Extraschedular considerations

The evidence shows that the Veteran's service-connected bilateral hearing loss and tinnitus result in difficulties hearing in group settings, requires him to look directly at others when having a conversations, and difficulties hearing others when background noises are present.  The Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluations for the service-connected bilateral hearing loss and tinnitus disabilities are adequate, and referral is not required.  Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1).


ORDER

A compensable rating for bilateral hearing loss is denied.

A rating in excess of 10 percent for tinnitus is denied.



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


Department of Veterans Affairs