Citation Nr: 1327579	
Decision Date: 08/28/13    Archive Date: 09/05/13

DOCKET NO.  13-09 681	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in 
Sioux Falls, South Dakota


THE ISSUE

Entitlement to an initial rating in excess of 20 percent for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

J. Young, Associate Counsel


INTRODUCTION

The Veteran had active military service from September 1944 to November 1946.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota that granted the Veteran service connection for bilateral hearing loss with a disability rating of 20 percent.

In June 2013, the Veteran and his wife testified at a Travel Board hearing before the undersigned Veterans Law Judge at the RO.  A transcript from the hearing is on file.

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


FINDING OF FACT

Audiometric testing done for VA compensation purposes reveals no worse than Level VI hearing acuity in the Veteran's right ear and no worse than Level V hearing acuity in the Veteran's left ear.


CONCLUSION OF LAW

The criteria for an initial rating higher than 20 percent for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.85, 4.86 Diagnostic Code (DC) 6100 (2012).




REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Notice and Assistance

The VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

This appeal arises from the Veteran's disagreement with the disability rating assigned following the grant of service connection for bilateral hearing loss.  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).  No additional discussion of the duty to notify is therefore required. 

VA also has a duty to assist the Veteran in the development of a claim, which is not abrogated by the granting of service connection.  The claims file contains the Veteran's service treatment records (STRs), his VA treatment records, and statements provided by the Veteran and his wife. 

A pertinent VA examination/opinion with respect to the issue on appeal was obtained in December 2012.  38 C.F.R. § 3.159(c)(4).  To that end, 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 VA examinations/opinions obtained here is sufficient, as it considered all of the pertinent evidence of record, including the statements of the Veteran, and provided explanations for the opinions stated as well as the medical information necessary to apply the appropriate rating criteria.  The VA audiologist also fully described the effects of this disability on the Veteran's occupational functioning and daily activities. See Martinak v. Nicholson, 21 Vet. App. 447   (2007).
VA has met its duty to assist the Veteran with respect to obtaining a VA examination concerning the issue (adjudicated herein) of entitlement to an initial rating in excess of 20 percent for bilateral hearing loss.  38 C.F.R. § 3.159(c)(4).

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

VA has no duty to inform or assist that was unmet.  The Veteran has not identified any additional pertinent medical records which have not been obtained and associated with the claims folder.

II.  Legal Criteria

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities.  38 C.F.R. Part 4.  The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10.  Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

The United States Court of Appeals for Veterans Claims (Court) has indicated that a distinction must be made between a Veteran's dissatisfaction with original ratings and dissatisfaction with determinations on later filed claims for increased ratings.  See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).  Consequently, the Board will evaluate the Veteran's hearing loss as a claim for a higher evaluation of the original award.  Also, when an original rating is appealed, consideration must be given as to whether an increase or decrease is warranted at any time since the award of service connection, a practice known as "staged" ratings.  Id.  

Defective hearing is rated in accordance with the criteria set forth in 38 C.F.R. §§ 4.85, 4.86.  In evaluating the Veteran's bilateral hearing loss, the Board notes that hearing loss evaluations are determined by a mechanical application of the rating schedule, which is grounded on numeric designations assigned to audiometric examination results.  Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1999).  Ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity.  Auditory acuity is gauged by examining the results of controlled speech discrimination tests, together with the results of pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz.  To rate the degree of disability, the rating schedule establishes 11 auditory acuity levels ranging from Level I, for essentially normal acuity, through Level XI, for profound deafness.  38 C.F.R. § 4.85.  

For exceptional patterns of hearing impairment, 38 C.F.R. § 4.86 provides as follows: (a) When the puretone 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 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.  Each ear will be evaluated separately.

III.  Factual Background

The Veteran is seeking an increased initial rating for bilateral hearing loss and he asserts that his level of hearing loss warrants a higher evaluation.  See Veteran's Claim; see also February 2013 Veteran's Notice of Disagreement. 

December 2012 VA audiology testing revealed the following puretone thresholds, in decibels:





HERTZ



500
1000
2000
3000
4000
RIGHT
55
60
70
75
80
LEFT
55
65
75
65
70

Based upon the above findings, the Veteran's puretone average in his right ear was 72 dB.  His puretone average in the left ear was 69 dB.  The Veteran's speech audiometry revealed speech recognition ability of his right ear was 92 percent and 96 percent in his left ear.  An exceptional pattern of bilateral hearing loss was shown as the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) was over 55 decibels.  The Veteran was diagnosed with bilateral sensorineural hearing loss.  

The VA examiner noted that the Veteran stated that his hearing loss impacts his daily life because the Veteran has utilized hearing aids for several years and he relies on them for daily communication.

At a June 2013 Travel Board Hearing, the Veteran and his wife described the effects of his hearing loss on his daily life; he described having to look at people while they are speaking to him and difficulties communicating over the telephone.  The Veteran also indicated that he has difficulty hearing people speaking from behind him.  The Veteran's wife explained that the Veteran cannot hear without his hearing aids and that she cannot watch television with her husband because of the volume is either "terrib[ly]" loud or very low.  She also described an incident in which they were nearly in an automobile accident because he could not hear a passing vehicle until the other driver blew their horn, causing the Veteran to stop his vehicle.  The Veteran's wife also described that during conversations, she is sometimes embarrassed because the Veteran, unknowingly, speaks very loudly and that members of their family have to tell him that he is speaking loudly.  

IV.  Analysis

Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that an increased rating is not warranted.  The Board has considered both the statements from the Veteran and of his wife and finds them both to be competent and credible in their assertions.  Even taking their statements into consideration, however, the Board finds that the preponderance of the evidence demonstrates that the Veteran's symptoms do not more closely approximate the criteria for the next higher rating.

The Veteran's puretone average in his right ear was 72 dB and his puretone average in the left ear was 69 dB; as an exceptional pattern of hearing loss was shown, Table VIa results in a numeral higher than Table VI.  Pursuant to 38 C.F.R. 4.85  Table VIa, his pure tone threshold average and speech discrimination score received a numeric designation of Level VI for his right ear and Level V for his left ear.  Applying the numeric designations to 38 C.F.R. 4.85, Table VII, the Veteran is entitled to a 20 percent disability rating under DC 6100.  

Accordingly, after accessing the findings of the Veteran's December 2012 audiological examination, pursuant to 38 C.F.R. 4.85, Tables VIa and VII, the Board concludes that the totality of the evidence of record has not shown that the Veteran's bilateral hearing loss warrants a rating in excess of 20 percent at any time during the current appeal period.  

The Board also finds that evidence does not show an exceptional or unusual disability picture as would render impractical the application of the regular schedular rating standards.  See 38 C.F.R. § 3.321 (2012).  The current evidence of record does not demonstrate that the bilateral hearing loss has resulted in frequent periods of hospitalization or in marked interference with employment.  Id.  

In this regard, the Board notes that it is undisputed that the Veteran's bilateral hearing loss has an adverse effect on employability, but it bears emphasis that the schedular rating criteria are designed to take such factors into account.  The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations.  38 U.S.C.A. § 1155.  "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability."  38 C.F.R. § 4.1 (2012).  In this case, the Veteran has not reported any specific problems and the results of the audiological examination and the VA examiner's opinion are specifically contemplated by the criteria discussed above.  38 C.F.R. § 4.10.  In this regard, the Board notes that the Veteran's hearing loss has not necessitated frequent periods of hospitalization and there is no objective evidence that it has resulted in marked interference with his employment. In Therefore, given the lack of evidence showing unusual disability not contemplated by the rating schedule, the Board concludes that a remand to the RO for referral of this issue to the VA Central Office for consideration of an extraschedular evaluation is not warranted.

Although the Veteran has submitted evidence of a medical disability, and a made claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable, as a result of his service-connected bilateral hearing loss.  The issue of entitlement to a total disability rating based on individual unemployability due to this service-connected disability has, therefore, not been raised.  Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).


ORDER

Entitlement to an initial rating in excess of 20 percent for bilateral hearing loss is denied.



____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs