Citation Nr: 1326136	
Decision Date: 08/16/13    Archive Date: 08/26/13

DOCKET NO.  07-37 789	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Columbia, South Carolina


THE ISSUE

Entitlement to an initial, compensable disability rating for a bilateral hearing loss disability.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Mary C. Suffoletta, Counsel 



INTRODUCTION

The Veteran served on active duty from December 1966 to February 1970, including service in Vietnam; and his decorations include the Combat Action Badge and the Purple Heart Medal.

This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a July 2007 decision of the RO that granted service connection for a bilateral hearing loss disability evaluated as 0 percent (noncompensable) disabling effective April 24, 2007.  The Veteran timely appealed for a higher initial rating.

In September 2011, the Board remanded the matter for additional development. The Board is satisfied there was substantial compliance with its remand orders.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998).  
 
The Court has recently held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  The Board notes that the Veteran has retired from working, and has not alleged that his service-connected disabilities prevent him from obtaining or maintaining substantially gainful employment.  The matter is not raised by the record, and the Board finds it unnecessary to remand the matter for further action.

Lastly, in addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his Virtual VA file.


FINDING OF FACT

Audiometric testing in September 2007 and in September 2011 has revealed, at worst, Level I hearing acuity in the right ear and Level II hearing acuity in the left ear.


CONCLUSION OF LAW

The criteria for an initial, compensable evaluation for a bilateral hearing loss disability are not met.  38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.385, 4.1, 4.7, 4.85, Tables VI, VIa, VII; 4.86, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

VA has a 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

The Veteran's claim arises from his disagreement with the initial evaluation assigned following the grant of service connection. Courts have held that once service connection is granted, the claim is substantiated; additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

The Board concludes that VA's duty to assist has been satisfied.  All available records identified by the Veteran as relating to this claim for a higher initial disability rating have been obtained, to the extent possible.  The RO or VA's Appeals Management Center (AMC) provided the Veteran with appropriate VA examinations, and there is no evidence indicating that there has been a material change in the severity of the Veteran's disability since he was last examined.  The Board finds the examination reports to be thorough and adequate upon which to base a decision with regard to this claim.

Given these facts, it appears that all available records have been obtained.  There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claim.  38 U.S.C.A. § 5103A(a)(2).

II.  Analysis

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  

When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  

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).

After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2012).

The Veteran's entire history is reviewed when making disability evaluations.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1.  Where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).

In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge.  Washington v. Nicholson, 19 Vet. App. 362 (2005).  He is also competent to report symptoms of hearing loss.  Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).

Service connection has been established for bilateral hearing loss, effective April 24, 2007.  The RO currently assigned a 0 percent (noncompensable) disability rating under 38 C.F.R. § 4.86, Diagnostic Code 6100, pertaining to hearing impairment.

Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings reported at audiometric examinations.  Evaluations of hearing impairment 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 pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per second.  To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2012).

Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII.  See 38 C.F.R. § 4.85.

The regulations include special provisions for evaluating exceptional patterns of hearing impairment:

(a) 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.  Each ear will be evaluated separately.

(b) When the pure tone threshold is 30 decibels or less 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.

During a July 2007 VA examination, the Veteran complained of difficulty understanding conversation, especially soft voices.  He reported minimal noise exposure at his work.  Pure tone thresholds on audiology testing were within normal limits, although speech recognition scores were less than 94 percent for each ear.  Testing results were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
N/A
10
15
15
25
LEFT
N/A
10
10
10
25

Speech recognition scores were 92 percent in the right ear and 92 percent in the left ear.  Pure tone threshold averages were 16.25 for the right ear and 13.75 for the left ear.  These findings correspond to Level I hearing in the right ear and Level I hearing in the left ear, which in turn corresponds to a noncompensable disability rating.  38 C.F.R. § 4.85, Tables VI and VII.  An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 is not shown.  

In August 2007, the Veteran reported that his left ear hearing loss had always been worse than his right ear hearing loss.  A copy of an employee audiogram submitted by the Veteran in September 2007 reflects pure tone thresholds on audiology testing from 1984 to 2003 that essentially were within normal limits.  It is unclear whether the Maryland CNC Test for speech recognition scores, as described in 38 C.F.R. § 4.85, was utilized.
 
Following the Board's September 2011 remand, the Veteran presented for a VA examination later that same month for purposes of evaluating the current severity of his bilateral hearing loss and its effects on employment or daily activities.  The Veteran reported that he currently had difficulty hearing someone talking from his left side.  Speech audiometry in September 2011 revealed speech recognition ability of 92 percent in the right ear, and 88 percent in the left ear.  On audiometric testing, pure tone thresholds, in decibels, were reported as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
N/A
5
20
20
25
LEFT
N/A
10
25
20
25

Pure tone threshold averages in September 2011 were 18.5 for the right ear and 20 for the left ear.  These findings correspond to Level I hearing in the right ear and Level II in the left ear, which in turn corresponds to a noncompensable disability rating.  38 C.F.R. § 4.85, Tables VI and VII.  An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 is not shown.  

The Board notes that the Veteran's service-connected tinnitus has been evaluated separately and is not for consideration in evaluating the Veteran's bilateral hearing loss.  38 C.F.R. § 4.14. 

The Board has considered the Veteran's statements as to the difficulties he experiences both socially and occupationally as a result of his bilateral hearing loss, and finds his report of difficulty understanding conversation and soft voices credible.  However, the Board observes that VA examiners also considered the Veteran's functional difficulty, and that no hearing aids were required in either ear.  

In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities.  See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs, Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2012).  The Veteran reported during VA examinations that he has difficulty understanding conversations.  Thus, information concerning how the Veteran's hearing loss affects his daily functioning was obtained.

VA's audiological examinations are designed for the purpose of obtaining information necessary for the full and accurate application of the rating schedule, which is based exclusively on the results provided from two objective tests:  a pure tone audiometry test and a speech discrimination test.  See 38 C.F.R. § 4.85.  The Veteran has not offered any evidence demonstrating that the testing method used produces inaccurate, misleading or clinically unacceptable results.  

It must be emphasized that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained.  Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  

While the Veteran has contended that his hearing has deteriorated, none of the audiometric examinations reflects a decrease in his level of hearing acuity to warrant a compensable rating at any time.  These test results are highly probative evidence against his claim as testing was specifically accomplished to determine whether a worsening in auditory acuity is shown.  Accordingly, the Board finds that the preponderance of the evidence is against finding that his bilateral hearing loss has increased in severity to warrant an initial compensable rating, or that available findings do not accurately reflect his hearing ability at any time.  Hence, the Board concludes that the objective clinical findings outweigh his lay assertions that a compensable evaluation is warranted at any time.  

Finally, an extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards.  Floyd v. Brown, 9 Vet. App. 88, 94 (1996).  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability.  See 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.  Otherwise, the schedular evaluation is adequate, and referral is not required.  38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. 

The Board finds that the schedular evaluation assigned for the Veteran's service-connected bilateral hearing loss is adequate in this case.  Specifically, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected disability.  The Veteran reports that he has difficulty hearing and understanding conversations, especially soft voices.  Such difficulty hearing is contemplated by the schedular criteria for impaired hearing.  Therefore, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met.  See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

For the foregoing reasons, an initial, compensable disability rating for the Veteran's bilateral hearing loss is not warranted.


ORDER

An initial, compensable evaluation for bilateral hearing loss is denied.




____________________________________________
MICHAEL A. PAPPAS
 Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs