Citation Nr: 1328885	
Decision Date: 09/10/13    Archive Date: 09/17/13

DOCKET NO.  12-13 578	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUE

Entitlement to an initial rating in excess of 0 percent for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Massachusetts Department of Veterans Services


ATTORNEY FOR THE BOARD

Andrew Larson, Associate Counsel







INTRODUCTION

The Veteran had active service from February 1967 to January 1970.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, which granted the Veteran's claim for service connection for bilateral hearing loss with an evaluation of 0 percent effective February 9, 2010.  The Veteran was also granted service connection for tinnitus with an evaluation of 10 percent effective February 9, 2010. 

In the Veteran's notice of disagreement subsequent to the rating decision on appeal, he indicated that he wanted to appeal for a higher rating for both his hearing loss and tinnitus.  The Veteran then withdrew the tinnitus claim in a July 2011 letter. 

The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO.



FINDING OF FACT

The record shows pure tone threshold averages of 64 decibels in both ears, with speech recognition score of 90 percent in the left ear and 84 percent in the right.


CONCLUSION OF LAW

The criteria for an initial rating higher than 0 percent for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.321 , 4.85, 4.86, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Procedural Duties

The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing information and evidence necessary to substantiate a claim.

With respect to VA's notice obligations, because this claim concerns an appeal of an initial rating, the VCAA notice obligations were fully satisfied once service connection was granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006) (holding that once a decision awarding service connection and assigning a disability rating and an effective date has been made, the section 5103(a) notice has served its purpose, and its application is no longer required because the claim has been substantiated).

To satisfy its duty to assist, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A.  This includes assisting the claimant in obtaining necessary medical examinations and opinions. Id. In the disability-rating context, once service connection for the disability has been established, this may include having the Veteran reexamined to reassess the severity of his disability - especially if he alleges a worsening of his disability since it was last rated or examined. See Green (Victor) v. Derwinski, 1 Vet. App. 121, 124 (1991) (where the record does not adequately reveal the current state of the disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). See also Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (holding that, when a Veteran claims that a disability is worse than when originally rated or last examined by VA, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination); Schafrath v. Derwinski, 1 Vet. App. 589 (1991) (VA must consider the history of the disability).  See, too, Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence adequately addressing the level of impairment of the disability since the previous examination).  See also VAOPGCPREC 11-95 (April 7, 1995).

There is no requirement, however, to have the Veteran reexamined merely because of the passage of time since an otherwise adequate examination. Cf. Palczewski v. Nicholson, 21 Vet. App. 174 (2007).

In this case, the Board concludes that the duty to assist has been met. The Veteran's service treatment records (STRs) have been obtained, also his post-service VA and private treatment records. Additionally, he was provided two VA compensation examinations. A May 2010 examination was performed when he was still trying to establish his underlying entitlement to service connection for his hearing loss. A more recent examination came in May 2012. Both examiners reviewed the Veteran's claims file before rendering their opinions.

The reports of these VA compensation examinations, especially when considered along with the other relevant evidence in the file, provide the information needed to properly rate the Veteran's hearing loss according to the criteria found in 38 C.F.R. § 4.85 , DC 6100 (2012). Thus, additional examination of this disability is not needed.  See 38 C.F.R. § 3.327(a). Since there is no indication of any relevant evidence still needing to be obtained concerning this claim, the Board is proceeding with its consideration of this claim.

II. Merits of the Claim

The RO granted service connection for bilateral hearing loss in June 2010, assigning a 0 percent rating from February 9, 2010. The Veteran contends that he is entitled to a higher rating because of his use of bilateral hearing aids and his trouble hearing in normal, daily circumstances. 

Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id.

In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. See 38 C.F.R. §§ 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).

In Fenderson v. West, 12 Vet. App 119 (1999), the United States Court of Appeals for Veterans Claims (Court) emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case, such as this one, in which a veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating." See Hart v. Mansfield, 21 Vet. App 505 (2007). In this case, there has not been a material change in the level of hearing loss and a uniform rating is warranted.

In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77.

The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

The Veteran's hearing loss has been evaluated under 38 C.F.R. § 4.85, DC 6100 (2012). This diagnostic code sets out the criteria for evaluating hearing impairment using pure tone threshold averages and speech discrimination scores. Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85; there is no room for subjective interpretation. See Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

Audiometric results are matched against Table VI to find the numeric designation, and then the designations are matched with Table VII to find the percentage evaluation to be assigned for the hearing impairment. To evaluate the degree of disability for service-connected hearing loss, the Rating Schedule establishes 11 auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. 38 C.F.R. § 4.85. When impaired hearing is service connected in one ear only, the non- service-connected ear will be assigned a designation of level I from Table VII. 38 C.F.R. § 4.85(f).

The provisions of section 4.86 address exceptional patterns of hearing loss, which are defined as when each of the pure tone thresholds at 1000, 2000, 3000, and 4000 hertz (Hz) are 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz. 38 C.F.R. § 4.86 .

On the authorized VA audiological evaluation in May 2010, pure tone thresholds, in decibels, were as follows:


500 Hz
1000 Hz
2000 Hz
3000 Hz
4000 Hz
AVERAGE
LEFT
30
35
40
80
85
60
RIGHT
30
35
40
80
85
60

Speech audiometry revealed speech recognition ability of 94 percent in both ears.

The results of the May 2010 audiogram show an average pure tone threshold of 60 decibels in the both ears with speech recognition ability of 94 percent. Table VI indicates a numeric designation of II for both ears. The point of intersection on Table VII reflects that the level of hearing loss is consistent with a 0 percent evaluation. Exceptional patterns of hearing impairment were not indicated.

On the authorized VA audiological evaluation in May 2012, pure tone thresholds, in decibels, were as follows:


500 Hz
1000 Hz
2000 Hz
3000 Hz
4000 Hz
6000 Hz
8000 Hz
Average
LEFT
35
40
45
80
90
85
100
64
RIGHT
35
40
45
80
90
105
105+
64

Note that the Average calculation was for the 1000-4000 Hz measurements. Speech audiometry revealed speech recognition ability of 90 percent in the left ear and 84 percent in the right ear.

The results of the May 2012 audiogram show an average pure tone threshold of 64 decibels in the both ears with speech recognition ability of 90 percent in the left and 84 percent in the right. Table VI indicates a numeric designation of III for both ears. The point of intersection on Table VII reflects that the level of hearing loss is consistent with a 0 percent evaluation. Exceptional patterns of hearing impairment were not indicated.

The Veteran asserts that he is entitled to a higher rating for his bilateral hearing loss disability because he needs bilateral hearing aids. Additionally, the Veteran highlights his inability to participate in normal conversations at restaurants, inability to understand speakers using microphones or other amplified sound, trouble hearing family members, trouble hearing sounds during recreational events, and retirement from full-time employment due to decreased confidence in his hearing ability in support of his claim. However, the medical evidence does not support the assignment of a higher rating for bilateral hearing loss. To the extent that his hearing is significantly impaired, the fact that the Veteran's hearing acuity is less than optimal does not by itself establish entitlement to a higher disability rating. To the contrary, it is clear from the Rating Schedule that a higher rating can be awarded only when loss of hearing has reached a specified measurable level. While the Board sympathizes with the Veteran's complaints, entitlement to an evaluation in excess of 0 percent has not been demonstrated in the present case.

The Veteran submitted private audiological records from 1992 through 2007 in support of his claim. None of these records show the Veteran having significantly worse pure tone threshold averages than those found is his VA examinations. Additionally, speech recognition ability was not recorded on the majority of these records. For these reasons, as well as the fact that that the most recent record stems from three years before the Veteran's claim for benefits, the Board concludes that the Veteran's VA examinations contain the most accurate representation of the Veteran's hearing loss for rating purposes. 

The level of hearing loss impairment has been relatively stable throughout the appeals period, or at least has never been worse than what is warranted for the rating assigned. Therefore, any application of staged ratings (i.e., different percentage ratings for different periods of time) is inapplicable. See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Board also has considered an inferred claim for a total disability rating based on individual unemployability (TDIU), pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). However, there is no indication in the record that the Veteran's hearing loss has rendered him unemployable. The Veteran indicated that his hearing troubles did play a factor in his retirement from full-time employment in 2008 due to a decreased confidence in his hearing ability, especially when dealing with international customers. However, the Veteran has not indicated that he is unemployable. In fact, the Veteran is currently employed on a part-time basis for his former company. As the issue of entitlement to a TDIU has not been raised by the evidence of record, it is inapplicable in this case.

Furthermore, the Board has considered the applicability of an extraschedular rating for the Veteran. In exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

The Board finds that the rating criteria contemplate the Veteran's hearing loss disability. The Veteran's difficulty hearing through background noise, difficulty with everyday conversations, and difficulty hearing during recreational activities have all been noted in his claims file. These factors, however, do not denote an exceptional or unusual disability picture. The symptoms associated with the Veteran's bilateral hearing loss are not shown to cause any impairment that is not already contemplated by the rating criteria. For these reasons, referral for consideration of an extraschedular rating is not warranted for this claim. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).

For the foregoing reasons, the Board finds that the evidence does not support the assignment of a rating in excess of 0 percent for bilateral hearing loss. Therefore, entitlement to an increased rating for the impairment associated with bilateral hearing loss is not warranted.

To the extent that the Veteran has contended that his bilateral hearing loss is more severely impaired than the rating assigned, the preponderance of the evidence is against the claim; and the benefit of the doubt doctrine is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to an initial rating in excess of 0 percent for bilateral hearing loss is denied.



____________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs