Citation Nr: 1328808	
Decision Date: 09/09/13    Archive Date: 09/17/13

DOCKET NO.  12-31 033	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Newark, New Jersey



THE ISSUE

Entitlement to an initial compensable evaluation for the service-connected bilateral hearing loss.



REPRESENTATION

Appellant represented by:	New Jersey Department of Military and Veterans' Affairs



ATTORNEY FOR THE BOARD

M. Mills, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1952 to January 1954.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in March 2011 by the RO.

In the October 2012 VA Form 9, the Veteran requested a videoconference hearing at the RO with a Veterans Law Judge by way of videoconference technology.

In an May 2013 statement, the Veteran indicated that he wanted to cancel the scheduled hearing and requested that the Board proceed with a determination of the issue on appeal.  Therefore, the Board finds that his hearing request is withdrawn.

In July 2013, the Board remanded the Veteran's claim for increase for additional development of the record.

A review of the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

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

The service-connected bilateral hearing loss disability is not shown to be manifested by puretone threshold averages and/or speech recognition scores that translate to higher than a Level I designation in the left ear and Level III designation on the right.


CONCLUSION OF LAW

The criteria for the assignment of a compensable rating for the service-connected bilateral hearing loss disability have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.85, 4.86 including Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1).

This appeal arises from a notice of disagreement with the initial assignment of a disability rating following a grant of service connection.  As the March 2011 rating decision on appeal granted the Veteran's claim of entitlement to service connection for bilateral hearing loss, the claim is now substantiated.  As such, his filing of a notice of disagreement as to these determinations does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a).  

Under these circumstances, VA fulfilled its obligation to advise and assist the Veteran throughout the remainder of the administrative appeals process, and similarly accorded the Veteran a fair opportunity to prosecute the appeal.  See Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  

With regard to the duty to assist, the claims file contains reports of post-service treatment and a VA examination report.  See 38 U.S.C.A. § 5103A(a)-(d).

With regards to service treatment records, the Veteran was notified in a letter dated June 2010 that his service treatment records were unavailable.  In cases where the Veteran's service records are unavailable, a heightened duty exists to assist the Veteran in the development of the case. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991).

The Veteran was notified in a June 2010 letter of acceptable substitutes for service treatment records which he may furnish to the VA.  In August 2010, the RO associated a memorandum with the record stating that the Veteran's service treatment records were unavailable.  

With respect to VA examinations, the Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

The Veteran was afforded a February 2011 VA examination to determine the current severity of his bilateral hearing loss disability.  The VA examination report was adequate for rating purposes because it employed the Maryland CNC speech discrimination test and otherwise contained data allowing the Board to determine whether the Veteran's rating was appropriate pursuant to the applicable regulatory criteria.

The Veteran submitted a April 2011 private audiology report.  The test results did not indicate whether the Maryland CNC criteria were used for speech discrimination testing.  

The Board additionally observes that all appropriate due process concerns have been satisfied.  See 38 C.F.R. § 3.103 (2012).  The Veteran has been accorded the opportunity to present evidence and argument in support of his claims.  

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim.  

Essentially, all available evidence that could substantiate the claim has been obtained.  There is no indication in the file that there are additional relevant records that have not yet been obtained.  


II.  Analysis

Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability.  See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2011).  Separate diagnostic codes identify the various disabilities.  See 38 C.F.R. Part 4.  

The Court has held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  The Veteran's disability level has been consistent throughout the appeal and staged ratings are not for application.

Assignments of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  38 C.F.R. §§ 4.85, 4.86, Tables VI, VIA, VII. 

Audiometric evaluations are conducted using the controlled speech discrimination tests together with the results of the puretone audiometry test.  38 C.F.R. § 4.85(a). 

Numeric designations (I through XI) are assigned by application of Table VI, in which the percentage of discrimination is intersected with the puretone decibel loss.  38 C.F.R. § 4.85, Table VI.  The results are then applied to Table VII, for a percentage rating.  Id.  

"Puretone threshold average," as used in Tables VI and VIA, is the sum of the puretone 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 Table VIA.  38 C.F.R. § 4.85(d). 

Under 38 C.F.R. § 4.86, evaluation of veterans with certain patterns of exceptional hearing impairment is contemplated.  In the case where puretone thresholds are 55 decibels or more at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz), either Table VI or Table VIA is applied, and whichever results in the higher numeral shall be applied.  38 C.F.R. § 4.86(a). 

In addition, when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the higher numeral of Table VI or Table VIA is also applied.  38 C.F.R. § 4.86(b).

In February 2011, the Veteran underwent VA examination which yielded the following results:





HERTZ



500
1000
2000
3000
4000
RIGHT
N/A
30
50
80
90
LEFT
N/A
20
25
75
70

Speech discrimination scores were at 84 percent in the right ear and of 94 percent in the left ear.  The average decibel loss was 48 in the left ear and 63 on the right.

Applying the schedular criteria, this examination report yielded numerical designations of level I in the left ear and level III in the right ear.  See 38 C.F.R. § 4.85, Table VI.  

The Veteran submitted a private hearing test performed in April 2011.  The test results did not indicate whether the Maryland CNC criteria were used for speech discrimination testing.  

In cases where the evaluation of hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test.  38 C.F.R. § 4.85(a).

When those values are applied to Table VII, a noncompensable disability evaluation is warranted for the service-connected bilateral hearing loss under the provisions of 38 C.F.R. § 4.85.  

These test results do not require consideration of exceptional patterns of hearing impairment under subsections (a) or (b) of 38 C.F.R. § 4.86 [thresholds of 55 or greater for all four Hertz frequencies, or 30 or less at the 1000 Hertz frequency and 70 or greater at the 2000 Hertz frequency].  

Regarding the functional effect that hearing loss has on the Veteran's occupation and daily activities, the February 2011 examination report noted that hearing loss had significant effects on the Veteran's occupation.  See Martinak v. Nicholson, 21 Vet. App. 447 (2007).  The examiner stated that the Veteran has difficulty understanding in the presence of background noise and soft speech.  The examiner did not, however, indicate that the Veteran was unable to maintain employment due to his hearing loss disability.

The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

Based upon the audiological examination results of record, the service-connected hearing loss does not warrant a compensable rating.


III.  Extraschedular Considerations

The Board must consider whether referral for an extraschedular rating is warranted under 38 C.F.R. § 3.321(b)(1).  

According to the regulation, an extraschedular 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) (2012).  

The Veteran was noted to experience difficulty understanding in the presence of background noise and with soft speech.  After addressing the Veteran's reported symptoms of hearing loss, the Board finds that there are no aspects of the disability picture that are not encompassed by the established rating criteria.  

Based on the evidence of record, the Veteran's disability picture is reasonably addressed by the criteria established for the evaluation of service-connected hearing loss disability.

Here, in fact, the Veteran's complaints do not show an exceptional pattern of hearing impairment in either ear.  See 38 C.F.R. § 4.85, 4.86.

Accordingly, as the schedular criteria are not found to be inadequate, submission for consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) is not indicated.  See Thun v. Peake, 22 Vet. App. 111 (2008).


ORDER

A compensable rating for the service-connected bilateral hearing loss disability is denied.



____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge,
Board of Veterans' Appeals



Department of Veterans Affairs