Citation Nr: 1327264 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 07-29 225 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a compensable evaluation for bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1976 to July 1979 and from February 1987 to May 1988. This appeal arises from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2011, the Board remanded the Veteran's claim for further evidentiary development. After completing the requested development, the Appeals Management Center (AMC) readjudicated the claim, as reflected by an October 2012 supplemental statement of the case. Because the benefit sought remains denied, the case has now been returned to the Board for further appellate review. The issues of entitlement to service connection for leg pain and a request to reopen a previously denied claim for entitlement to service connection for a lumbar spine disorder have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT The Veteran's service-connected bilateral hearing loss is not manifested by a level of hearing acuity necessary for a compensable rating. CONCLUSION OF LAW The criteria for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist VA has a duty to notify and assist veterans 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 and 3.326(a) (2012). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For an increased disability rating claim, VA is required to provide the Veteran with generic notice - that is, the type of evidence needed to substantiate the claim. This includes evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the duty to notify was satisfied by way of a letters sent to the Veteran in July 2006 and April 2008 which fully addressed all notice elements. The letters informed the Veteran of what evidence was required to substantiate the claim and of the Veteran and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records, pertinent treatment records, and providing an examination when necessary. 38 C.F.R. § 5103A; 38 C.F.R. § 3.159. The Veteran's service and VA treatment records have been obtained and considered. In addition, a private audiological examination is associated with the Veteran's file. He also was provided with audiological VA examinations in March 2006, August, 2006, and October 2012. In 2012, the VA examiner described the functional effects caused by the Veteran's bilateral hearing loss. Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran has not indicated there are any additional records that VA should seek to obtain on his behalf. As noted above, the Board remanded the case in May 2011 for additional development including an examination and additional VA treatment records. As the requested development has substantially been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F. 3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Increased rating for bilateral hearing loss The Veteran contends that he is entitled to a compensable rating for his service-connected bilateral hearing loss disability. Disability ratings are based on the average impairment of earning capacity established in the Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. As is the case here, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). In cases for which the evaluation of hearing loss is at issue, ratings range from non-compensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC) together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from service-connected defective hearing, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100 (2012). Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). An exceptional pattern of hearing impairment occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. In that situation, 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(a) (2012). Further, when the average puretone 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. When only one ear is service connected, the non service connected ear is given Level I hearing loss. 38 C.F.R. § 4.86(b) (2012). Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average. Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of Section 4.86. 38 C.F.R. § 4.85 (c). The Board notes that the Veteran underwent a private audiological evaluation in December 2005, which included pure tone thresholds results in decibels, but the report did not make clear whether or not the examination was conducted using Maryland CNC guidelines, as required by 38 C.F.R. § 4.85(a). Since the private report does not include the necessary findings to appropriately evaluate the Veteran's hearing loss according to the Rating Schedule, the report is inadequate for VA rating purposes. At a VA Compensation and Pension audiology examination in March 2006, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 20 55 LEFT 20 20 25 40 55 Puretone threshold averages were 29 for the right ear and 35 for the left ear. Speech recognition scores were 86 percent in the right ear and 84 percent in the left ear. These findings correspond to Level II hearing in the right ear and Level II hearing in the left ear. Such results support the assignment of a 0 percent disability rating under 38 C.F.R. § 4.85, Tables VI and VII. The Veteran was afforded a VA Compensation and Pension audiology examination in August 2006. On that occasion, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 45 40 55 LEFT 35 35 40 45 55 Puretone threshold averages were 44 for the right ear and 44 for the left ear. Speech recognition scores were 80 percent in the right ear and 82 percent in the left ear. These findings correspond to Level III hearing in the right ear and Level III hearing in the left ear. The results support the assignment of a 0 percent disability rating under 38 C.F.R. § 4.85, Tables VI and VII. The Veteran underwent another VA examination in October 2012. The Veteran stated that he had to "ask people to repeat" what they were saying to him and that he cannot follow TV without reading the captions. Upon examination, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 25 35 60 LEFT 20 25 35 40 60 Puretone threshold averages were 36 for the right ear and 40 for the left ear. Speech recognition scores were 80 percent in the right ear and 86 percent in the left ear. These findings correspond to Level III hearing in the right ear and Level II hearing in the left ear. The results support the assignment of a 0 percent disability rating under 38 C.F.R. § 4.85, Tables VI and VII. Taking into account the evidence set out above, the Board finds that the preponderance of the evidence is against a compensable disability rating for bilateral hearing loss at any time during the pendency of the Veteran's appeal. The VA examinations were conducted in accordance with 38 C.F.R. § 4.85(a), are highly probative. In this regard, audiometric findings in March 2006, August 2006 and October 2012, when applied to the above cited rating criteria show no more than level III in both ears. Such results support the assignment of a 0 percent disability rating under 38 C.F.R. § 4.85, Tables VI and VII. The evidence of record fails to demonstrate that a higher disability rating is warranted for the Veteran's service-connected bilateral hearing loss. The application of the rating schedule to the test results clearly demonstrates that a noncompensable disability rating is warranted for bilateral hearing loss. In addition, the Board observes that the Veteran does not meet the criteria for an exceptional pattern of hearing impairment in either ear as contemplated by 38 C.F.R. § 4.86. Based on the results of the audiological evaluations discussed above, and in the absence of any additional medical evidence showing a more severe hearing disability, a compensable evaluation is not warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disability. The Veteran's bilateral hearing loss disability is productive of decreased hearing acuity and this manifestation is contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's service-connected bilateral hearing disability and referral for consideration of extraschedular rating is not warranted. The Court has held that entitlement to a TDIU is an element of all appeals for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. As there is no evidence of unemployability due to the Veteran's hearing loss, the question of entitlement to a TDIU is not raised. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, supra; Gilbert v. Derwinski, supra. ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs