Citation Nr: 1328024	
Decision Date: 09/03/13    Archive Date: 09/10/13

DOCKET NO.  08-36 125	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUE

Entitlement to higher initial evaluations for bilateral hearing loss, currently assigned a noncompensable prior to June 2, 2010, a 10 percent evaluation from June 2, 2010, through January 10, 2012, and a 30 percent evaluation from January 11, 2012.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

W. Yates, Counsel


INTRODUCTION

The Veteran served on active duty from August 1966 to August 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  Jurisdiction over the case was subsequently returned to the RO in Pittsburgh, Pennsylvania.

In December 2011, the Board remanded this matter for additional evidentiary development.

In January 2012, the Appeals Management Center (AMC)  issued a rating decision which granted an increased evaluation of 10 percent, effective from June 2, 2010; followed by a 30 percent evaluation, effective January 11, 2012, for the Veteran's bilateral hearing loss.  These increases did not satisfy the Veteran's appeal.


FINDING OF FACT

Since the initial grant of service connection, the Veteran's bilateral hearing loss has been manifested by Level VI hearing acuity in both ears.


CONCLUSIONS OF LAW

1.  The criteria for an evaluation of 30 percent, but no higher, for bilateral hearing loss, from June 26, 2006, through January 10, 2012, have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012).,

2.  The criteria for an evaluation in excess of 30 percent for bilateral hearing loss, from January 11, 2012, have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSIONS

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  

They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  

The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The record reflects that the Veteran was provided all required notice in a letter mailed in September 2006, prior to the initial adjudication of the claim.

The duty to assist the Veteran has also been satisfied.  The originating agency has obtained the Veteran's service treatment records and his pertinent VA treatment records.  Most recently, the Veteran was provided with a Disability Benefits Questionnaire (DBQ) examination in January 2012.  The DBQ examiner reviewed the Veteran's pertinent medical history, examined the Veteran, and included rationales for the conclusions reached.  The Court has held that, in addition to providing objective test results, a VA audiologist must fully describe the effects of a disability on occupational functioning and daily activities.  Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  The January 2012 VA examination report is in compliance with this decision.  The Board finds the report of the January 2012 DBQ examination to be adequate for adjudication purposes.  The Veteran has not contended otherwise.  

The Board's December 2011 remand instructed the originating agency to obtain the Veteran's updated treatment records; and to arrange for the Veteran to be scheduled for an examination to ascertain the current severity of his bilateral hearing loss.  The AMC requested additional evidence and information from the Veteran in a December 2011 letter.  It also obtained the Veteran's updated VA treatment records, dated through January 2012, from the VA medical center in Altoona, Pennsylvania.  Finally, the AMC afforded the Veteran the January 2012 DBQ examination discussed above.  Accordingly, the originating agency has complied with the directives in the Board's prior remand.  See Stegall v. West, 11 Vet. App. 268 (1998).

Neither the Veteran nor his representative has identified any additional evidence that could be obtained to substantiate the claim.  The Board is also unaware of any such evidence.  Accordingly, the Board will address the merits of the claim.

II.  Legal Criteria 

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012).  

The severity of a hearing loss disability is determined by comparisons of audiometric test results with specific criteria set forth at 38 C.F.R. § 4.85.  Evaluations of bilateral defective hearing 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 puretone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz (cycles per second).  The audiometric test results are then translated into a numeric designation ranging from level I to level XI, for profound deafness, in order to evaluate the degree of disability from bilateral service-connected defective hearing.  38 C.F.R. § 4.85.

The rating criteria provide for rating exceptional patterns of hearing impairment under the provisions of 38 C.F.R. § 4.86.  If the puretone threshold is greater than 55 decibels at each of four specified frequencies, 1000 Hertz, 2000 Hertz, 3000 Hertz and 4000 Hertz, VA must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  Each ear is evaluated separately.  38 C.F.R. § 4.86(a).  If the puretone threshold is 30 decibels or less at 1000 Hertz and simultaneously 70 decibels or more at 2000 Hertz, VA must 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 highest numeral for consideration.  Each ear is evaluated separately.  38 C.F.R. § 4.86(b).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  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 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  

To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

III.  Factual Background and Analysis

In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability.  The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes.  

In October 2007, the RO issued a rating decision granting service connection at a noncompensable disability rating, effective from June 26, 2006.  The Veteran timely appealed this decision.  In January 2012, the AMC issued a decision which granted an increased evaluation of 10 percent, effective from June 2, 2010; followed by a 30 percent evaluation, effective January 11, 2012.

In January 2012, the Veteran underwent a DBQ audiological examination.  The examiner reviewed the Veteran's pertinent history and noted that the Veteran complained of having hearing difficulties at all times in quiet and in background noise.  An audiological evaluation revealed pure tone thresholds, in decibels, as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
45
50
70
85
90
LEFT
40
35
55
70
90

The average pure tone thresholds at 1,000, 2,000, 3,000, and 4,000 Hertz were 74 decibels in the right ear and 62 decibels in the left ear.  Speech recognition ability was 68 percent in the right ear and 60 percent in the left ear.  The examiner noted that the Veteran's hearing loss impacts his ordinary conditions of daily life, including his ability to work.  

Using Table VI, the January 2012 DBQ audiological examination demonstrates the presence of Level VI hearing impairment in both ears  See 38 C.F.R. § 4.85, Table VI.  The findings do not qualify as an exceptional pattern of hearing impairment.  See 38 C.F.R. § 4.86.  Under Table VII, Level VI impairment in both ears with speech recognition abilities of 68 and 60 percent are considered 30 percent disabling.  

Although prior audiological examinations were conducted in January 2007 and in June 2010, these examinations were not adequate for rating purposes.  Specifically, both tests are noted to have used CID W-22 testing to determine speech discrimination, and not the Maryland CNC test which is required by 38 C.F.R. § 4.85.  In addition, both tests failed to provide any discussion of the functional effects of the Veteran's hearing loss disability.  Accordingly, the Board finds the reports of these prior examinations to be inadequate for rating purposes.  Since the January 2012 DBQ examination report is the only evidence of record that is adequate for rating purposes, the Board finds that a 30 percent evaluation is warranted throughout the initial evaluation period.

Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted more than a 30 percent rating.  See Fenderson v. West, 12 Vet. App. 119 (1999).

The Board has considered whether this claim should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration.  In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).

The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing.  The symptoms associated with the Veteran's bilateral hearing loss are contemplated by the rating criteria.  The Veteran's main complaint is reduced hearing acuity, which is precisely what is contemplated in the rating assigned.  As the available schedular criteria for this service-connected disability are adequate, referral for consideration of an extra-schedular rating is not warranted.  

Finally, the Veteran has not alleged and the evidence does not otherwise suggest that this disability renders him unemployable.  Accordingly, a claim for total disability rating based upon individual unemployability has not been raised.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  


ORDER

The Board having determined that the Veteran's bilateral hearing loss warrants a 30 percent evaluation, but not higher, throughout the initial evaluation period, the benefit sought on appeal is granted to this extent and subject to the criteria applicable to the payment of monetary benefits.



____________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs