Citation Nr: 1328166	
Decision Date: 09/04/13    Archive Date: 09/10/13

DOCKET NO. 12-36 128	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUE

Entitlement to a compensable rating for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Ryan Farrell, Agent


ATTORNEY FOR THE BOARD

Michael J. Adams, Associate Counsel


INTRODUCTION

The Veteran had active service from February 1975 to August 1981.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.


FINDINGS OF FACT

The Veteran's hearing loss is manifested by no more than level II in the left ear and no more than level II in the right ear.


CONCLUSION OF LAW

The criteria for a compensable disability rating for bilateral hearing loss have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.385, 4.85-4.87, Diagnostic Code (DC) 6100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to Notify and Assist

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).

The Veteran is challenging the initial evaluations assigned following the grant of service connection for his disability.  In Dingess, the Court also held that in cases where service connection has been granted and an initial disability evaluation has been assigned, the service connection claim has been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer necessary because the purpose that the notice is intended to serve has been fulfilled. Id, at 490-91.  Therefore, regardless of whether the notice that the Veteran was provided with before service connection was granted was legally sufficient, the Board finds that VA's duty to notify in this case has been satisfied. 

Moreover, the Board finds that even if VA had an obligation to provide the Veteran with 38 U.S.C.A. § 5103(a) notice and failed to do so before first adjudicating his claims, that this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claims after reading the June 2009 VCAA letter as well as the rating decision, the statement of the case, and the supplemental statements of the case.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009).

As to VA's duty to assist, 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).  In this case, the RO obtained the reports associated with the three VA audiological examinations, and there was no indication that the Veteran received any VA or private treatment during the course of his appeal.  The Veteran was also offered the opportunity to testify at a hearing before the Board, but he declined. 

The Veteran was provided with three VA examinations (the reports of which have been associated with the claims file).  The Board finds that two of the above VA examinations (November 2009 and March 2013) are thorough and adequate upon which to base a decision with regard to the Veteran's claims.  The VA examiners personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate his disability under the applicable rating criteria.  Moreover, neither the Veteran nor his representative have objected to the adequacy of the examination or alleged that his hearing has gotten worse since the March 2013 VA examination.  The May 2009 VA examination is inadequate because the Maryland CNC word list was not used.

In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the 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 his or her final report.  At the March 2013 audiological examination the Veteran was specifically asked how his bilateral hearing loss impacted his daily life including his ability to work.  The examiner noted that the Veteran had difficulty hearing and understanding conversations in noisy settings or when visual cues were limited.  As such, the Board finds that the examiner has fully described the functional effect of the Veteran's bilateral hearing loss.

For the reasons expressed above, the Board finds that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of his claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002).

II. Increased Rating

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1.  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work.  38 C.F.R. § 4.2.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7.
In Fenderson v. West, 12 Vet. App. 119, 126 (1999), the Court held that in initial rating claims evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of separate rating for distinct periods of time is required (known as "staged ratings").  See Fenderson, 12 Vet. App. at 126.

Pursuant to VA's rating schedule, the assignment of a disability rating for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations derived from the results of audiometric evaluations.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

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 pure tone audiometric tests at the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz).  To evaluate the degree of disability from bilateral defective hearing, the rating schedule establishes 11 auditory acuity levels designated from level I, for essentially normal acuity, through level XI, for profound deafness.  

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.  38 C.F.R. § 4.86(a).  Similarly, if the pure tone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz, 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, and that numeral will be elevated to the next higher Roman numeral.  

Table VIA, "Numeric Designation of Hearing Impairment Based Only on Pure Tone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the pure tone 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, described in the preceding paragraph.  38 C.F.R. § 4.85(c).

The evidence consists of three hearing tests.  With regard to the hearing tests, the Veteran was seen by a VA audiologist in May 2009, November 2009, and in March 2013 where he was evaluated for hearing loss.  The May 2009 VA examination did not use the Maryland CNC word list and is therefore inadequate for rating purposes.  The November 2009 and March 2013 VA examination are adequate.  Audiological results for pure tone thresholds and Maryland CNC scores were as follows:

November 2009 pure tone thresholds:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
35
65
70
LEFT
20
20
45
65
65
Pure tone averages: Right - 47.5; Left - 48.75
Maryland CNC Scores: Right - 92%; Left - 92%

March 2013 pure tone thresholds:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
25
55
70
75
LEFT
20
30
60
70
65

Pure tone averages: Right -56; Left - 56
Maryland CNC Scores: Right - 88%; Left - 88%

Applying Table VI to the Veteran's hearing loss as shown at his examinations in November 2009 results in numeric designations of Level I for the left ear and Level I for the right ear which equates to a noncompensable rating per Table VII.  38 C.F.R. § 4.85.  As demonstrated by the above medical evidence, the Veteran's hearing loss was most significant at his March 2013 audiological examination.  Applying Table VI to the Veteran's hearing loss as shown at that time results in numeric designations of Level II in the left ear and Level II in the right ear, which would still equate to a noncompensable rating.

The Board notes that Table VIA does not provide entitlement to a higher rating based on either of the above audiological examinations because the pure tone thresholds were not 55 decibels at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz), nor was the pure tone threshold at 30 decibels or lower at 1000 Hz and 70 decibels or more at 2000 Hz for either ear on either of the examinations.  38 C.F.R. § 4.86.

As described, the multiple hearing tests do not show that a compensable schedular rating is warranted for the Veteran's bilateral hearing loss at any time during the course of his appeal.  Therefore there is no basis for a staged rating.

The Board has also considered whether an extraschedular rating is warranted, noting that if an exceptional case arises where the rating schedule is found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made.  38 C.F.R. § 3.321(b)(1).  The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service.  Thun v. Peake, 22 Vet. App. 111 (2008).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  This means that 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.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required.  If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization").  See id. 

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate.  A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology.

The Board further observes that, even if the available schedular evaluations for the hearing loss disability are inadequate (which they are not), the Veteran does not exhibit other related factors such as those provided by the regulations as "governing norms."  Specifically, while the Veteran reported to a VA examiner that he does not work, he did not provide a rationale nor did he assert that his hearing loss disability was the reason for his unemployment.  The record is negative for objective evidence that the Veteran's hearing disability caused this unemployment and thereby resulted in marked interference with employment or frequent periods of hospitalization.  See Bagwell v. Brown, 9 Vet. App. 337 (1996).  Therefore, the Board finds that the evidence does not demonstrate an exceptional or unusual clinical picture beyond that contemplated by the rating criteria.

The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised.  Here, there is no evidence that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities.  He has not alleged that he is unemployable on account of his service connected disabilities.  During a VA examination for his service -connected bilateral knee disability the Veteran stated that his knees made it difficult for him to drive his truck at a prior job, but there is no indication that the service-connected disabilities prevented him from working or caused him to lose his job or quit.  During a VA examination for a low back disability, which is not service-connected, the Veteran stated that he doesn't work and is on VA disability.  He did not assert that his service-connected disabilities prevented him from securing or following a substantially gainful occupation.  Thus, the Board finds that no claim for TDIU has been reasonably raised by the record.

Therefore, the Veteran's claim for a compensable rating for bilateral hearing loss is denied.


ORDER

Entitlement to a compensable rating for bilateral hearing loss is denied.



____________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs