Citation Nr: 1328269 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 09-23 371A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial compensable evaluation for service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from March 1949 to January 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. 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 During the entire appeal period, at its worst, the Veteran's bilateral hearing loss has been manifested by Level II hearing acuity in the right ear and Level I hearing acuity in the left ear. CONCLUSION OF LAW The criteria for an initial compensable evaluation for bilateral hearing loss have not been met at any time during the appeal period. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.85, 4.86, 4.87, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants 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, 3.326(a) (2012). As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. He was provided the opportunity to present pertinent evidence and testimony; however, in September 2011, the Veteran withdrew his request for a hearing. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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. 38 C.F.R. § 4.7. The Veteran is appealing the original assignment of a disability evaluation following an award of service connection for bilateral hearing loss. As such, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected bilateral hearing loss has been evaluated as noncompensably disabling pursuant to 38 C.F.R. § 4.87, Diagnostic Codes 6100 for hearing impairment. Hearing loss ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with average hearing thresholds determined by pure tone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 cycles per second. "Pure tone threshold average" is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz divided by four. This average is used in all cases (including those in §4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85, Diagnostic Code 6100. The rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. 38 C.F.R. § 4.85. The horizontal rows in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone threshold average intersect. See 38 C.F.R. §§ 4.85, 4.87 (2012). On VA audiological assessment in March 2006, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 25 45 60 LEFT 5 5 30 45 50 The average of the pure tones between 1000-4000 Hz was 35 decibels for the right ear and 33 decibels for the left ear. Speech audiometry revealed speech recognition ability of 92 percent in both ears. Using Table VI in 38 C.F.R. § 4.85, the Veteran received numeric designations of I for both ears. Level I hearing acuity in both ears equates to a zero percent (noncompensable) evaluation. 38 C.F.R. § 4.85, Table VII. The Veteran underwent VA audiological examination in March 2007. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 25 40 65 LEFT 10 10 30 40 55 The average of the pure tones between 1000-4000 Hz was 35 decibels for the right ear and 34 decibels for the left ear. Speech audiometry revealed speech recognition ability of 90 percent in the right ear and of 92 percent in the left ear. Using Table VI in 38 C.F.R. § 4.85, the Veteran received a numeric designation of II for the right ear and a numeric designation of I for the left ear. Level II hearing acuity in the poorer ear and Level I hearing acuity in the better ear equates to a noncompensable evaluation. 38 C.F.R. § 4.85, Table VII. On VA audiological assessment in August 2009, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 30 50 70 LEFT 10 10 30 45 55 The average of the pure tones between 1000-4000 Hz was 41 decibels for the right ear and 35 decibels for the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 92 percent in the left ear. Using Table VI in 38 C.F.R. § 4.85, the Veteran received numeric designations of I for both ears. Level I hearing acuity in both ears equates to a noncompensable evaluation. 38 C.F.R. § 4.85, Table VII. The Veteran underwent VA audiological examination in December 2010. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 30 50 70 LEFT 15 15 35 50 65 The average of the pure tones between 1000-4000 Hz was 40 decibels for the right ear and 41 decibels for the left ear. Speech audiometry revealed speech recognition ability of 94 percent in both ears. Using Table VI in 38 C.F.R. § 4.85, the Veteran received numeric designations of I for both ears. Level I hearing acuity in both ears equates to a noncompensable evaluation. 38 C.F.R. § 4.85, Table VII. The Board notes that it also considered the alternative rating scheme for exceptional patterns of hearing impairment and found it inapplicable here. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a) (2012). Additionally, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86(b) (2012). The record demonstrates that the Veteran does not exhibit exceptional patterns of hearing impairment, and, therefore, evaluation pursuant to 38 C.F.R. § 4.86 is not applicable. In Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the United States Court of Appeals for Veterans Claims (Court), noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dept of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2007). The Court noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. In this case, the Veteran has not reported to VA that there was any prejudice caused by a deficiency in the examination. The Veteran, as a lay person, is competent to submit evidence of how the hearing loss affects his everyday life. See Layno v. Brown, 6 Vet. App. 465, 469- 470 (1994) (finding that lay testimony is competent when it regards features or symptoms of injury or illness). The March 2007 VA examiner noted that the Veteran reported that his tinnitus was severe and that it seriously affected his normal activities such as communication and hearing and falling asleep. The December 2010 VA examiner noted that there were no significant effects from the Veteran's hearing loss disability on occupation. In this case, the evidence does not support a compensable disability evaluation at any time during the appeal period for bilateral hearing loss. The Board is aware that an extraschedular rating is a component of an increased rating claim. Barringer v. Peake, 22 Vet. App. 242 (2008); see Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008); see Fisher v. Principi, 4 Vet. App. 57, 60 (1993); 38 C.F.R. § 3.321(b)(1). If so, factors for consideration in determining whether referral for an extraschedular rating is warranted include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable. Thun, citing 38 C.F.R. § 3.321(b)(1) (2008). In the present case, the Board finds no evidence that the Veteran's service-connected bilateral hearing loss presents such an unusual or exceptional disability picture at any time so as to require consideration of an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1). The criteria pertaining to hearing impairment in the Rating Schedule focus on hearing acuity. 38 C.F.R. § 4.85, Diagnostic Code 6100. Thus, it appears that the schedular criteria adequately compensate for any loss in earning capacity, and referral for extraschedular consideration is not warranted. Id. The Board acknowledges the judicial holding in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In that decision, the United States Court of Appeals for Veterans Claims held that a request for a total rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "'claim" for benefits, but rather, can be part of a claim for increased compensation. In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a TDIU is warranted as a result of that disability. In the present case, there is no indication in the record that reasonably raised a claim of entitlement to a TDIU. ORDER Entitlement to an initial compensable evaluation for service-connected bilateral hearing loss is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs