Citation Nr: 1328693	
Decision Date: 09/09/13    Archive Date: 09/17/13

DOCKET NO.  07-40 155	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to a compensable initial rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. Prem, Counsel


INTRODUCTION

The Veteran served on active duty from July 1973 to June 1995.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which granted service connection for bilateral hearing loss, and evaluated the disability as noncompensable, effective from the date of service connection, January 31, 2006.  This matter was remanded in November 2011 for further development.  


FINDING OF FACT

Throughout the rating period on appeal, the Veteran's bilateral hearing loss has been manifested by no more than Level II hearing in the right ear and Level IV hearing in the left ear.


CONCLUSION OF LAW

The criteria for a compensable evaluation for bilateral hearing loss have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.85-87, Diagnostic Code 6100 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).  

The Veteran's appeal arises from disagreement with the initial rating following the grant of service connection.  Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as 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).  Therefore, no further notice is needed under VCAA.

Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Assist

VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of relevant service and post-service treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination.  Moreover, his statements in support of the claim are of record.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.  

The Board's remand was to provide the Veteran with a current examination that included consideration of the functional effects of the hearing loss.  See Martinak v. Nicholson, 21 Vet. App. 447 (2007).

For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in substantiating the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Initial Ratings

The present appeal involves the Veteran's claim that the severity of his service-connected bilateral hearing loss warrants a higher disability rating.  Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two evaluations shall be applied, 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.  

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21 (2013).  

Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time.  See Fenderson v. West, 12 Vet. App. 119 (1999).

The current version of the Ratings Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is 
the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  See 38 C.F.R. § 4.85.

Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing.  Id.

If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of §3.383 of this chapter.  Id.  

A noncompensable evaluation is provided where hearing in the better ear is I and hearing in the poorer ear is I through IX; where hearing in the better ear is II, and hearing in the poorer ear is II to IV; or where there is level III hearing in both ears.  A 10 percent disability rating is warranted where hearing in the better ear is I, and hearing in the poorer ear is X to XI; or where hearing in the better ear is II, and hearing in the poorer ear is V to XI; or where hearing in the better ear is III, and hearing in the poorer ear is IV to VI.  A 20 percent disability rating is warranted where hearing in the better ear is III, and hearing in the poorer ear is VII to XI; or where hearing in the better ear is IV, and hearing in the poorer ear is VI to VIII; or where hearing in the better ear is V, and hearing in the poorer ear is V to VI.  38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100.

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.  38 C.F.R. § 4.86(a).

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. 38 C.F.R. § 4.86(b).

Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992).

The Veteran underwent a VA examination in August 2006.  The examiner reviewed the claims file in conjunction with the examination.  Pure tone thresholds for the ears were as follows:





HERTZ


1000
2000
3000
4000
RIGHT
25
25
35
50
LEFT
25
20
30
60

The pure tone average was 34 decibels in the right ear and 34 decibels in the left ear.  Speech recognition scores were 84 percent in the right ear and 72 percent in the left ear.  Such examination findings translate to level II hearing in the right ear and level IV hearing in the left ear.  38 C.F.R. § 4.85, Table VI.  Applying Table VII, Diagnostic Code 6100, this equates to a 0 percent rating.
  
In December 2011, the Veteran underwent another VA audiological examination.  Upon examination, pure tone thresholds for the ears were as follows:




HERTZ


1000
2000
3000
4000
RIGHT
25
40
50
55
LEFT
20
25
35
50

The pure tone average was 43 decibels in the right ear and 33 decibels in the left ear.  Speech recognition scores were 92 percent in the right ear and 92 percent in the left ear.  Such examination findings translate to level I hearing in the right ear and level I hearing in the left ear.  38 C.F.R. § 4.85, Table VI.  Applying Table VII, Diagnostic Code 6100, this equates to a 0 percent rating.  

The examiner noted that the functional effects of the Veteran's hearing loss included difficulty hearing conversation at a distance; difficulty understanding speech in noisy settings; misunderstanding verbal instructions; difficulty hearing TV or radio at a normal volume; difficulty hearing conversation over the phone; difficulty hearing warning signals such as smoke alarms and police sirens; embarrassment when asking others to repeat what they said; social isolation; and difficulty heaving conversation if the speaker was not facing him. 
 

Analysis

The Veteran's noncompensable rating has been assigned based on the results of the April 2006 and December 2011 VA examinations.  Examinations showed puretone averages and speech recognition scores which translated to level II hearing in the right ear and level IV hearing in the left ear (April 2006) and level I hearing in the right ear and level I hearing in the left ear (December 2011).  As noted above, applying Table VII, Diagnostic Code 6100, this equates to a 0 percent rating for bilateral hearing loss.  

The Veteran has contended that the impacts of his hearing loss on work, ability to watch television and listen to the telephone warrant a compensable rating.  Ratings for hearing impairment are meant to compensate for the impact of the disability on work by applying mechanical rating criteria.  38 U.S.C.A. § 1155; Lindenmann.  Applying the test results most favorable to the Veteran to the regulatory criteria, the Board is compelled to conclude that the preponderance of the evidence is against entitlement to a compensable.  Thus, there is no reasonable doubt to be resolved.  The Veteran may always advance an increased rating claim should the severity of his hearing loss disability increase in the future.

The potential application of various provisions of Title 38 of the Code of Federal Regulations has also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards."  38 C.F.R. § 3.321(b)(1); see also See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) (noting that functional effects of hearing loss must be considered in an extraschedular determination).  Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321(b)(1) (2013).  

Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

If the evidence raises the question of entitlement to an extraschedular rating, 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.  Therefore, 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.  Thun v. Peake, 22 Vet. App. 111 (2008).

Under the approach prescribed by VA, 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, therefore, adequate, and no referral is required.  In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine 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").  

The Veteran has offered nonspecific reports that his hearing loss interferes with work, television watching and using the telephone.  He reported at the most recent examination difficulty hearing unless directly facing the person speaking.  Assuming arguendo that these are symptoms not contemplated by the rating scheduled, the rating schedule is meant to compensate for the impacts of his disability on work.  He has not reported that his symptoms cause an exceptional impact on employment or caused any periods of hospitalization.  The evidence is against a finding that there are exceptional factors in this case.  Referral for extraschedular consideration is, therefore, not warranted.  


ORDER

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



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs