Citation Nr: 1328389	
Decision Date: 09/05/13    Archive Date: 09/16/13

DOCKET NO.  10-16 623	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, 
Nebraska


THE ISSUE

Entitlement to an initial compensable disability rating for 
a service-connected bilateral hearing loss disability.


REPRESENTATION

Appellant represented by:	AMVETS


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

C.A. Skow, Counsel

INTRODUCTION

The Veteran served on active duty in the United States Navy 
from February 1975 to February 1979.

This matter is before the Board of Veterans' Appeals (the 
Board) on appeal of an August 2010 rating decision issued by 
the Department of Veterans Affairs (VA) Regional Office (RO) 
in Lincoln, Nebraska, which granted the Veteran's claim for 
service connection for a bilateral hearing loss disability 
and assigned an initial noncompensable disability.

In August 2011, the Veteran testified at a Travel Board 
hearing which was chaired by the undersigned Veterans Law 
Judge (VLJ) at the Lincoln RO.  A hearing transcript is 
associated claims folder.

In October 2012, the Board remanded the case for additional 
evidentiary development.  The development is complete and 
the case has been returned to the Board for disposition.

The Board notes that, in addition to the paper claims 
folder, there is a Virtual VA electronic claims file 
associated with the Veteran's claim.  A review of the 
documents in the electronic file reveals that they are 
either duplicative of the evidence in the paper claims file 
or are irrelevant to the issue on appeal.


FINDING OF FACT

The Veteran's hearing loss disability is manifested by an 
average puretone decibel loss of 33 with 96 percent speech 
discrimination in the right ear, and an average puretone 
decibel loss of 45 with 84 percent speech discrimination in 
the left ear.




CONCLUSION OF LAW

The criteria for a compensable evaluation for bilateral 
hearing loss disability are not met.  38 U.S.C.A. § 1155 
(West 2002); 38 C.F.R. §§ 4.7, 4.85, Tables VI, VIA, VII, 
Diagnostic Code 6100, 4.86 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act (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.  Although the regulation 
previously required VA to request that the claimant provide 
any evidence in the claimant's possession that pertains to 
the claim, the regulation has been amended to eliminate that 
requirement for claims pending before VA on or after May 30, 
2008.

The Board also notes the United States Court of Appeals for 
Veterans Claims (Court) has held the plain language of 38 
U.S.C.A. § 5103(a) requires notice to a claimant pursuant to 
the VCAA be provided "at the time" 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 articulated in Pelegrini applies 
equally to the initial-disability-rating and effective-date 
elements of a service-connection claim.  Dingess/Hartman v. 
Nicholson, 19 Vet. App. 473 (2006).

The Board finds that VA satisfied its duty to notify.  The 
record reflects that VA sent to the Veteran all required 
notice in a November 2009 letter, prior to the rating 
decision on appeal.  The Veteran's increased rating claim 
arises from his disagreement with the initial evaluations 
assigned following the grant of service connection.  It is 
well-established that, in cases where service connection has 
been granted and an initial rating and effective date have 
been assigned, the typical service connection claim has been 
more than substantiated, it has been proven.  As a result, 
no additional 38 U.S.C.A. § 5103(a) notice is required 
because the purpose that the notice is intended to serve has 
been fulfilled.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. 
Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

The Board also finds that VA satisfied its duty to assist 
the Veteran in the development of his claim.  VA obtained 
all relevant medical treatment records identified by the 
Veteran and associated these records with the claims files.  
VA further afforded the Veteran an appropriate VA 
audiological evaluation in August 2010.  The authorized VA 
examination report includes sufficient findings to rate the 
Veteran's hearing loss disability under the appropriate 
rating criteria.  In evaluating the adequacy of the 
examination report, the Board observes that in Martinak v. 
Nicholson, 21 Vet. App. 447 (2007), the 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 (Dep't 
of Veterans Affairs Veterans Apr. 24, 2007); see also 38 
C.F.R. § 4.10 (2012).  In the present case, the August 2010 
examiner addressed the disability's effect on occupational 
activities, and the record otherwise includes the Veteran's 
statements concerning its effects.  Thus, the Board 
concludes that the examination report is adequate for 
purposes of rendering a decision in the instant appeal.  See 
38 CF.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. 
App. 303, 312 (2007).

The Board previously remanded this case for additional 
development.  On review, the Board finds substantial 
compliance with the requirements articulated in the Board's 
prior remand decisions.  See Stegall v. West, 11 Vet. App. 
268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  
Moreover, neither the Veteran nor his representative has 
alleged that the Board's remand instructions were not 
followed.  On the contrary, the Veteran's representative, in 
a June 2013 statement, wrote that "the actions taken by the 
Appeals Management Center appear to comply with the actions 
mandated when [the Board] remanded the claim."  

Lastly, VA afforded the Veteran a hearing on appeal.  In 
Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held 
that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who 
conducts a hearing fulfill two duties to comply with the 
above the regulation. These duties consist of (1) the duty 
to fully explain the issue(s) and (2) the duty to suggest 
the submission of evidence that may have been overlooked.  
Here, the VLJ asked questions to regarding the severity of 
the Veteran's hearing loss disability and its functional 
effect.  The VLJ accepted additional medical evidence with a 
waiver of consideration by the originating agency at this 
time.  Additionally, the Board remanded this case based on 
the hearing testimony and evidence submitted then.  
Therefore, the Board finds that the VLJ substantially 
complied with the duties set forth in 38 C.F.R. § 
3.103(c)(2)

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

Evaluation of Bilateral Hearing Loss Disability

The Veteran seeks an initial compensable evaluation for 
bilateral hearing loss disability.  He testified that he had 
severe hearing difficulties, which he believed were 
sufficient to warrant a compensable evaluation.

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 (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.

Pertinent Laws and Regulations

Disability evaluations are determined by the application of 
the VA Schedule for Rating Disabilities (Rating Schedule).  
38 C.F.R. Part 4.  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 military service and their residual conditions in 
civil occupations.  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 
evaluation; otherwise, the lower rating will be assigned.  
38 C.F.R. § 4.7.

In general, all disabilities, including those arising from a 
single disease entity, are rated separately, and all 
disability ratings are then combined in accordance with 
38 C.F.R. § 4.25.  However, the evaluation of the same 
"disability" or the same "manifestations" under various 
diagnoses is prohibited.  38 C.F.R. § 4.14.  The Court has 
held that a veteran may not be compensated twice for the 
same symptomatology as "such a result would over compensate 
the claimant for the actual impairment of his earning 
capacity."  Brady v. Brown, 4 Vet. App. 203, 206 (1993).  
This would result in pyramiding, contrary to the provisions 
of 38 C.F.R. § 4.14.  The Court has acknowledged, however, 
that when a veteran has separate and distinct manifestations 
attributable to the same injury, he should be compensated 
under different Diagnostic Codes.  Esteban v. Brown, 6 Vet. 
App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993).

Separate evaluations may be assigned for separate periods of 
time based on the facts found.  In other words, the 
evaluations may be "staged."  Hart v. Mansfield, 21 Vet. 
App. 505 (2007) (staged ratings are appropriate when the 
factual findings show distinct period where the service-
connected disability exhibits symptoms that would warrant 
different ratings.); see also Fenderson v. West, 12 Vet. 
App. 119, 126 (2001).  A disability may require re- 
evaluation in accordance with changes in a veteran's 
condition.  It is thus essential, in determining the level 
of current impairment, that the disability be considered in 
the context of the entire recorded history.  38 C.F.R. § 
4.1.

In general, to evaluate the degree of disability from 
defective hearing, the Rating Schedule establishes eleven 
auditory acuity levels from Level I for essentially normal 
acuity through Level XI for profound deafness.  38 C.F.R. §§ 
4.85, 4.87, Tables VI, VIa, VII.  Organic impairment of 
hearing acuity is measured by the results of controlled 
speech discrimination tests together with the average 
hearing threshold level as measured by a puretone audiometry 
test in the frequencies of 1,000, 2,000, 3,000, and 4,000 
cycles per second.  See 38 C.F.R. § 4.85(a), (d).  Ratings 
of hearing loss disability involve mechanical application of 
the rating criteria to the findings on official audiometry.  
See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  The 
schedular evaluations are intended to make proper allowance 
for improvement by hearing aids.  38 C.F.R. § 4.86.

Exceptional patterns of hearing impairment are rated under 
38 C.F.R. § 4.86.  Specifically, an exceptional pattern of 
hearing loss is hearing loss of 55 decibels or more in each 
of the four specified frequencies (i.e. 1000, 2000, 3000, 
and 4000 Hertz), and hearing loss with a puretone threshold 
of 30 decibels or less at 1000 Hertz and 70 decibels or more 
at 2000 Hertz.  38 C.F.R. § 4.86(a), (b).

Schedular Analysis

After carefully reviewing the evidence of record, the Board 
finds that the preponderance of the evidence is against an 
initial compensable evaluation for bilateral hearing loss 
disability.  The evidence of record does not more nearly 
reflect the criteria for a compensable evaluation.  38 
C.F.R. § 4.7.

On the authorized VA audiological examination in August 
2010, puretone thresholds, in decibels, at 1000, 2000, 3000, 
and 4000 Hertz were as follows: 


1000
2000
3000
4000
Avg.
Right 
Ear
5
40
45
40
33
Left Ear
10
45
65
60
45

There was 96 percent speech discrimination in the right ear 
and 84 percent speech discrimination in the left ear using 
the Maryland CNC Word List.

Applying 38 C.F.R. § 4.85, Table VI, to the above 
audiological findings, the Veteran has a numeric designation 
of I for his right ear and II for his left ear. Application 
of 38 C.F.R. § 4.85, Table VII results in a finding that a 0 
percent disability evaluation for the service-connected 
bilateral hearing loss is warranted.

The puretone thresholds from this examination do not reflect 
an exceptional pattern of hearing loss as contemplated by 38 
C.F.R. § 4.86(a) because the puretone threshold at each of 
the four specified frequencies (1,000, 2,000, 3,000, and 
4,000 Hertz) is not 55 decibels or more; and, as such, that 
provision is inapplicable.  Additionally, an exceptional 
pattern of hearing loss as contemplated by 38 C.F.R. 
§ 4.86(b) is not shown as the documented puretone threshold 
for the Veteran are not 30 decibels or less at 1000 Hertz 
and 70 decibels or more at 2000 Hertz, and thus, neither 
Table VI or Table VIa is applicable.  38 C.F.R. § 4.86(b).

To the extent that the Veteran reports that his acuity is 
worse than evaluated, the Board has considered his 
statements and testimony.  This evidence is both competent 
and credible in regard to reporting worsening hearing 
acuity.  However, far more probative of the degree of the 
disability are the results of testing prepared by skilled 
professionals since the schedular criteria are predicated on 
audiological findings rather than subjective reports of 
severity of hearing loss.  In essence, lay statements are of 
limited probative value.  As a layperson, the Veteran is 
competent to report difficulty with his hearing; however, he 
is not competent to assign particular speech recognition 
scores or puretone decibel reading to his current acuity 
problems.  As indicated above, ratings of hearing loss 
disability involve mechanical application of the rating 
criteria to the findings on official audiometry.  See 
Lendenmann, supra.

The Board has further considered the June 24, 2010, and 
January 13, 2011, VA audiological reports that included 
audiogram results.  However, these audiological examinations 
are inadequate for VA rating purposes.  For VA rating 
purposes, an examination for hearing impairment must be 
conducted by a state-licensed audiologist and must include a 
controlled speech discrimination test (Maryland CNC) and a 
puretone audiometry test.  See 38 C.F.R. § 4.85.  In the 
present case, VA obtained a medical review dated in March 
2013 of these audiological reports.  The VA medical review, 
prepared by a VA audiologist, reflects that the June 2010 
and January 2011 audiograms were not performed with use of 
the Maryland CNC word lists.  The Board further observes 
that both of these audiometric tests were conducted for the 
purpose of obtaining hearing aids rather than for VA 
evaluation purposes with the requirements thereof in mind.  
Thus, absent any indication that the tests were conducted in 
accordance with the regulatory guidelines of 38 C.F.R. 
§ 4.85(a), the results have diminished probative value.

Accordingly, the claim for a compensable evaluation for 
hearing loss disability is denied.  Absent a relative 
balance of the evidence, the evidence is not in equipoise 
and the benefit-of-the-doubt doctrine does not apply.  38 
U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 
(1990).  The Board believes that a uniform disability 
evaluation is warranted.  Because the disability has not met 
the criteria for a higher evaluation at any time during the 
appeal period, there is no basis for a staged rating.  See 
Fenderson and Hart, supra.

Extraschedular Consideration

Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board 
cannot make a determination as to an extraschedular 
evaluation in the first instance.  See also VAOPGCPREC 6-96.  
However, the Board can address the matter of referral of a 
disability to appropriate VA officials for such 
consideration.

Under the applicable criteria, an extraschedular disability 
rating is warranted upon a finding that the case presents 
such an exceptional or unusual disability picture with such 
related factors as marked interference with employment or 
frequent periods of hospitalization that would render 
impractical the application of the regular schedular 
standards.  See 38 C.F.R. § 3.321(b)(1); see also Fanning v. 
Brown, 4 et. App. 225, 229 (1993).

As noted previously, in Martinak v. Nicholson, 21 Vet. App. 
447, 453-4 (2007), the Court held that a VA audiologist must 
fully describe the functional effects caused by a hearing 
disability in the final report of the examination to 
facilitate determinations regarding extraschedular 
consideration.  The Court noted that, unlike the rating 
schedule for hearing loss disability, 38 C.F.R. § 3.321(b) 
does not rely exclusively on objective test results to 
determine whether an extraschedular rating is warranted.  
See Martinak, 21 Vet. App. at 455.

Notably, the August 2010 VA examiner noted that the Veteran 
was unemployed due to multiple sclerosis.  She noted that 
speech discrimation was normal on the right side and good on 
the left side, but that he would have hearing difficulty in 
his occupational activities.  At his personal hearing, the 
Veteran reported poor hearing without his hearing aids.  He 
denied problems communicating with his wife because of his 
hearing.  Transcript at 6.  He denied the need to read lips.  
Id.  He reported that he watched television with the volume 
turned up, and that he could hear an ambulance with its 
siren when driving in a car.  He indicated that if he were 
in a room with 3 to 4 people he would not be able to 
identify who was actually talking without looking at them.  
The record shows that the Veteran wears hearing aids.  Given 
that the functional effect of the Veteran's hearing loss 
disability was addressed on VA examination, the Board finds 
that the report is in compliance with Martinak, and that the 
evidence of record is sufficient for the Board to consider 
whether referral for an extraschedular rating is warranted 
under 38 C.F.R. § 3.321(b).

Under Thun v. Peake, 22 Vet App 111 (2008), decided after 
the Court's decision in Martinak, there is a three-step 
inquiry for determining whether a veteran is entitled to an 
extraschedular rating.  First, the Board must determine 
whether the evidence presents such an exceptional disability 
picture that the available schedular evaluations for that 
service-connected disability are inadequate.  Second, if the 
schedular evaluation does not contemplate the claimant's 
level of disability and symptomatology and is found 
inadequate, the Board must determine whether the claimant's 
disability picture exhibits other related factors such as 
those provided by the regulation as "governing norms."  
Third, if the rating schedule is inadequate to evaluate a 
veteran's disability picture and that picture has attendant 
thereto related factors such as marked interference with 
employment or frequent periods of hospitalization, then the 
case must be referred to the Under Secretary for Benefits or 
the Director of the Compensation and Pension Service to 
determine whether, to accord justice, the veteran's 
disability picture requires the assignment of an 
extraschedular rating.

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 evaluation for the 
service-connected bilateral hearing loss disability is 
inadequate.  A comparison between the levels of severity and 
symptomatology of the Veteran's hearing loss with the 
established criteria found in the rating schedule for 
hearing loss shows that the rating criteria reasonably 
describes the Veteran's disability level and symptomatology; 
as discussed above, the rating criteria considers puretone 
decibel hearing loss and speech discrimination hearing loss.

Since the available schedular evaluation adequately 
contemplates the Veteran's level of disability and 
symptomatology, the second and third questions posed by Thun 
become moot.  In any event, the Board observes that, even if 
the available schedular evaluation for the Veteran's hearing 
loss disability were inadequate [which it manifestly is 
not], the Veteran does not exhibit other related factors 
such as those provided by the regulation as "governing 
norms," nor does he so contend.

The Board has been unable to identify an exceptional or 
unusual disability picture, and neither has the Veteran.  As 
noted above, the Veteran has hearing difficulty and requires 
help from hearing aids.  The Board however finds that these 
functional effects caused by the Veteran's hearing 
disability, which undoubtedly exist, do not constitute any 
exceptional or unusual disability picture warranting 
consideration of an extraschedular rating.

In short, there is nothing in the record to indicate that 
the Veteran's service-connected hearing loss disability 
causes impairment with employment over and above that which 
is contemplated in the assigned schedular rating.  The Board 
therefore has determined that referral of this case for 
extraschedular consideration pursuant to 38 C.F.R. 
3.321(b)(1) is not warranted.
In this case, the manifestations of the disability are 
contemplated by the schedular criteria governing hearing 
loss disability.  Therefore, referral for extra-schedular 
consideration is not warranted.


ORDER

An initial compensable evaluation for bilateral hearing loss 
disability is denied.




____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs