Citation Nr: 1327529	
Decision Date: 08/28/13    Archive Date: 09/05/13

DOCKET NO.  11-03 206	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to an increased (compensable) evaluation for right ear hearing loss.


REPRESENTATION

Veteran represented by:	Missouri Veterans Commission


ATTORNEY FOR THE BOARD

J. Davis, Associate Counsel









INTRODUCTION

The Veteran served on active duty from February 1982 to November 1987.  The Veteran character of service was upgraded to honorable in April 1991.

This matter come before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, that denied an increased (compensable) evaluation for right ear hearing loss.  

The Board notes that the November 2012 Supplemental Statement of the Case (SSOC) did take into account the October 2012 audiological examinations.


FINDING OF FACT

The Veteran's right ear hearing loss has been manifested by no more than level I hearing in his right ear.


CONCLUSION OF LAW

The criteria for a compensable rating for right ear hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 (2011).






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REASONS AND BASES FOR FINDINGS AND CONCLUSION

VCAA

VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA, 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits.  As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). 

The notice required by the VCAA can be divided into three elements.  Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain.  Beverly v. Nicholson, 19 Vet. App. 394, 403   (2005) (outlining VCAA notice requirements).  Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120   (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).  

In the instant case, notice was provided to the Veteran in January 2010, prior to the initial adjudication of his claim in February 2010. The content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify.  

VA satisfied its duty to assist the Veteran in the development of his claim and to seek relevant records.  VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The RO associated the Veteran's service treatment records and VA treatment records with the claims file. Additionally, the Veteran has not identified any treatment records aside from those that are already of record.  Thus, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim.

VA provided the Veteran with an audiological examination in December 2010 and on October 2012 to determine the status of the Veteran's right ear, hearing loss disability. These examinations are adequate as the examination reports shows that the examiners considered the relevant history of the Veteran's hearing loss, and the examiners provided a sufficiently detailed description of the current state of the Veteran's disability. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate).  

As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A , or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim.  

Increased Evaluation

The Veteran contends that his right ear disability to include hearing loss has worsened as evidenced by his use of hearing aids.

The evaluation of service connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in light of appropriate rating criteria. 38 U.S.C.A. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet App. 589 (1991). In addition, the entire history of the Veteran's disability is also considered. Consideration must be given to the ability of the Veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10. 

If there is a question as to which of the two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 28 C.F.R. § 4.7.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board acknowledges that a claimant may experience multiple degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 

Disability ratings for hearing loss disability are derived from mechanical application of the rating schedule to the numeric designations resulting from audiometric testing.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  Evaluations of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing 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 Hertz. To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters. 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100 (2012). Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Id. However, if impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the none-service-connected ear will be assigned a Roman numeral designation for hearing impairment of I. See 38 C.F.R. § 4.85(f).

The Board acknowledges for exceptional hearing impairment defined as pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are 55 decibels or more, or when the pure tone threshold are 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. Each ear is to be evaluated separately. See 38 C.F.R. § 4.86 (2012).

The Board acknowledges that, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the U.S. Court of Appeals for Veterans Claims (Court) held that, relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in final audiolgoical report.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011); see also Gilbert v. Derwinski, 1 Vet. App. 49   (1990).

Merits of the Claim

VA received the Veteran's claim for an increased evaluation in January, 2010. Thus the temporal focus is from the period beginning one year prior to receipt of that claim to the present. See Hart v. Mansfield, 21 Vet. App. at 509.

The record shows that entitlement to service connection for right ear hearing loss was established in an April 1994 by Board decision. The Veteran's hearing loss was evaluated as noncompensable by the RO in May 1994 under the former rating code. See C.F.R. 3.385 (1994).

Turning next to December 2010 and October 2012 audiological examinations, the results of the Veteran's measured puretone thresholds values and Maryland CNC Word List Speech Recognition Score were as follows:

December 2010 audiological examination, pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT 
30
25
25
40
30

Maryland CNC Word List Speech Recognition Score revealed speech recognition ability of 94 percent in the right ear.

October 2012 audiological examination, pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
30
25
20
30
26

Maryland CNC Word List Speech Recognition Score revealed speech recognition ability of 96 percent in the right ear.

Utilizing first Table VI, the Veteran's right ear hearing loss is placed within the parameters of "Roman numeral I" for both his December 2010 and October 2012 audiological examinations. See 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100 (2012). The Veteran's left ear hearing loss is not service connected and is thus placed in the parameters of "Roman numeral I" due to operation of 38 C.F.R. § 4.85(f). Second, utilizing Table VII with both "Roman numeral I" results indicates that the Veteran's right ear hearing falls within a noncompensable evaluation. See 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100 (2012).

Turning to the functional effects caused by the Veteran's right ear disability, in the October 2012 audiological examination, the Veteran reports that he has trouble understanding people talking especially if there is any noise. Outside the Veteran's trouble understanding people when there is noise, there is no other functional loss described by the audiologist.  Indeed, these complaints are encompassed by the noncompensable rating assigned.  The Board reiterates that disability ratings for hearing loss disability are derived from mechanical application of the rating schedule to the numeric designations resulting from audiometric testing.  See Lendenmann, Supra.  In view of these factors, the preponderance of the evidence is against the assignment of a compensable disability rating.

The Board has considered entitlement to an increased evaluation on an extrascheduler basis, but application of extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (2012). The threshold factor for extrascheduler consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available scheduler evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008).

There is no evidence that the Veteran experiences any symptoms not contemplated in the rating criteria. Hence, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under the above-cited regulation, was not required. See Bagwell v. Brown, 9 Vet. App. 337 (1996). In this case and for the reasons described above, the applicable rating code provides for higher ratings but the Veteran's symptoms did not meet the criteria for a compensable disability rating. In view of these findings, the rating code is adequate under the circumstances of this case.  In any case, the Veteran states that he is currently working.

If a Veteran asserts that he is unable to secure and follow a substantially gainful employment, it is presumed that the Veteran is raising a claim for Total Disability due to Individual Unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447 (2009); 38 C.F.R. 4.16(b). The Veteran has not raised the issue of whether he able to secure and follow gainful employment due to his service connected disability.


ORDER

An increased (compensable) evaluation, for right ear hearing loss is denied.



____________________________________________

JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs