Citation Nr: 1325747	
Decision Date: 08/14/13    Archive Date: 08/16/13

DOCKET NO.  10-04 236A	)	DATE
	)
	)

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



THE ISSUE

Entitlement to an initial compensable disability evaluation for the service-connected bilateral hearing loss.



REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States



WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

M. Mills, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1967 to November 1969.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in April 2009 by the RO.

In January 2012, the Veteran presented testimony at the RO before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the claims file.

In June 2012, the Board remanded the Veteran's claim for increase for additional development of the record. 

In June 2012, the Board remanded the matter of service connection for tinnitus.  The Appeals Management Center (AMC) granted service connection for tinnitus in a December 2012 rating decision.  It is no longer on appeal before the Board.

A review of the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.


FINDING OF FACT

The service-connected bilateral hearing loss disability is not shown to be manifested by puretone threshold averages and/or speech recognition scores that translate to higher than a Level II designation in either ear.


CONCLUSION OF LAW

The criteria for the assignment of a compensable rating for the service-connected bilateral hearing loss disability have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.85, 4.86 including Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

Proper VCAA notice 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. 38 C.F.R. § 3.159(b)(1).

This appeal arises from a notice of disagreement with the initial assignment of a disability rating following a grant of service connection.  As the April 2009 rating decision on appeal granted the Veteran's claim of entitlement to service connection for bilateral hearing loss, the claim is now substantiated.  As such, his filing of a notice of disagreement as to these determinations does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a).  

Under these circumstances, VA fulfilled its obligation to advise and assist the Veteran throughout the remainder of the administrative appeals process, and similarly accorded the Veteran a fair opportunity to prosecute the appeal.  See Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  

With regard to the duty to assist, the claims file contains service treatment records, reports of post-service treatment, and reports of VA examinations.  See 38 U.S.C.A. § 5103A(a)-(d).

With respect to VA examinations, the Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

The Veteran was afforded February 2009 and May 2010 VA audiology examinations to rate the current severity of his bilateral hearing loss disability.  The examination reports indicate that the results were not reliable.

The Veteran submitted a January 2010 private audiology report.  The test results did not indicate whether the Maryland CNC criteria were used for speech discrimination testing.  

In June 2012, the Board remanded the claim to schedule the Veteran for an additional VA examination.

In July 2012, the Veteran was afforded a VA audiological examination in compliance with the Board's remand instructions.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  

The July 2012 VA audiological examination was adequate for rating purposes because it employed the Maryland CNC speech discrimination test and otherwise contained data allowing the Board to determine whether the Veteran's rating was appropriate pursuant to the applicable regulatory criteria.

The Veteran was also afforded an opportunity to present testimony at a hearing before the Board.  During the hearing, the undersigned Veterans Law Judge (VLJ) clarified the issue on appeal.  The Veteran and his representative identified an evidentiary deficit and the VLJ suggested the submission of additional evidence to support the Veteran's claim.  The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing.  38 C.F.R. § 3.103.

The Board additionally observes that all appropriate due process concerns have been satisfied.  See 38 C.F.R. § 3.103 (2012).  The Veteran has been accorded the opportunity to present evidence and argument in support of his claims.  

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim.  

Essentially, all available evidence that could substantiate the claim has been obtained.  There is no indication in the file that there are additional relevant records that have not yet been obtained.  


II.  Analysis

Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability.  See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2011).  Separate diagnostic codes identify the various disabilities.  See 38 C.F.R. Part 4.  

The Court has held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

Assignments of 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.  38 C.F.R. §§ 4.85, 4.86, Tables VI, VIA, VII. 

Audiometric evaluations are conducted using the controlled speech discrimination tests together with the results of the puretone audiometry test.  38 C.F.R. § 4.85(a). 

Numeric designations (I through XI) are assigned by application of Table VI, in which the percentage of discrimination is intersected with the puretone decibel loss.  38 C.F.R. § 4.85, Table VI.  The results are then applied to Table VII, for a percentage rating.  Id.  

"Puretone threshold average," as used in Tables VI and VIA, is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  This average is used in all cases (including those in § 4.86) to determine the Roman numeral designation for hearing impairment from Table VI or Table VIA.  38 C.F.R. § 4.85(d). 

Under 38 C.F.R. § 4.86, evaluation of veterans with certain patterns of exceptional hearing impairment is contemplated.  In the case where puretone thresholds are 55 decibels or more at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz), either Table VI or Table VIA is applied, and whichever results in the higher numeral shall be applied.  38 C.F.R. § 4.86(a). 

In addition, when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the higher numeral of Table VI or Table VIA is also applied.  38 C.F.R. § 4.86(b).

In February 2009 and May 2010, the Veteran underwent VA examination.  The examiners indicated that the results of those examinations were not reliable.  As such, puretone thresholds and speech discrimination scores are not reported.

The Veteran submitted a private hearing test performed in January 2010.  The test results did not indicate whether the Maryland CNC criteria were used for speech discrimination testing.  

In cases where the evaluation of hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test.  38 C.F.R. § 4.85(a).

At his January 2012 hearing, the Veteran testified that he had difficulty undergoing audiometric evaluation because of his tremors, and if given more time, an additional examination may be more reliable.

The Veteran underwent a VA audiological examination in July 2012 which yielded the following results: 





HERTZ



500
1000
2000
3000
4000
RIGHT
N/A
25
20
35
50
LEFT
N/A
25
15
35
60

Speech discrimination scores were at 84 percent in the right ear and of 88 percent in the left ear.  The average decibel loss was 33 in the right ear and 34 in the left ear.

Applying the schedular criteria, this examination report yielded a numerical designation of level II in both ears.  See 38 C.F.R. § 4.85, Table VI.  

When those values are applied to Table VII, a noncompensable disability evaluation is warranted for the service-connected bilateral hearing loss under the provisions of 38 C.F.R. § 4.85.  

These test results do not require consideration of exceptional patterns of hearing impairment under subsections (a) or (b) of 38 C.F.R. § 4.86 [thresholds of 55 or greater for all four Hertz frequencies, or 30 or less at the 1000 Hertz frequency and 70 or greater at the 2000 Hertz frequency].  

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.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

Based upon the audiological examination results of record, the Veteran's hearing loss is simply not of sufficient severity to warrant a compensable rating.


III.  Extraschedular Considerations

The Board must consider whether referral for an extraschedular rating is warranted under 38 C.F.R. § 3.321(b)(1).  

According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1) (2012).  

The Veteran was noted to experience difficulty understanding people in his daily life.   

After addressing the Veteran's reported symptoms of hearing loss, the Board finds that there are no aspects of the disability picture that are not encompassed by the established rating criteria.  

Based on the evidence of record, the Veteran's disability picture is reasonably addressed by the criteria established for the evaluation of service-connected hearing loss disability.    

Here, in fact, the Veteran's complaints do not show an exceptional pattern of hearing impairment in either ear.  See 38 C.F.R. § 4.85, 4.86.

Accordingly, as the schedular criteria are not found to be inadequate, submission for consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) is not indicated.  See Thun v. Peake, 22 Vet. App. 111 (2008).


ORDER

A compensable rating for the service-connected bilateral hearing loss disability is denied.


____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge,
Board of Veterans' Appeals



Department of Veterans Affairs