Citation Nr: 1329223 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 11-11 827 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a compensable initial evaluation for bilateral hearing loss. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran had active military service from October 1958 to August 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in September 2011, and a transcript of the hearing is of record. FINDING OF FACT The February 2010 VA examination reflects that the Veteran's service-connected bilateral hearing loss has been manifested by no worse than level I hearing impairment in the right ear and level IV hearing impairment in the left ear. CONCLUSION OF LAW The criteria for a compensable initial evaluation for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1155, 5107, 5110 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.321, 3.400, 4.1, 4.2, 4.3, 4.7, 4.21, 4.85, 4.86 Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist 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. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2012). VA must inform the Veteran about the information and evidence that is necessary to substantiate the claim, the information and evidence that VA will seek to provide, and the information and evidence that the Veteran is expected to provide. 38 U.S.C.A. § 5103(a)(1); 38 C.F.R. § 3.159(b)(1). The appeal for a higher rating for hearing loss arose from a disagreement with the initial evaluation assigned following the grant of service connection for bilateral hearing loss. As such, there is no duty to provide further VCAA notice. 38 C.F.R. § 3.159(b)(3) (2012). Rather, VA is only required to provide notice of the decision (under 38 U.S.C. § 5104) and a statement of the case (under 38 U.S.C. § 7105). The record reflects that these notices have been provided to the Veteran. VA satisfied the duty to assist the Veteran under the VCAA by gathering relevant records. VA has a duty to assist in obtaining the Veteran's service medical records, VA medical records and other relevant records. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c). The Veteran's service treatment records and VA examination records have been obtained and are in the claims file. Additionally, VA satisfied the duty to assist the Veteran by providing a medical examination to the Veteran. VA provided an examination to the Veteran in February 2010. The February 2010 VA examination report provided clinical findings necessary to determine if an increased rating for the Veteran's service-connected hearing loss was warranted in the context of the rating criteria. The report also provided findings as to the impact of his service-connected hearing loss on his daily life as required by Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Board finds the record as it stands includes adequate evidence to allow the Board to decide the issue on appeal. Additionally, the Veteran has not identified any relevant evidence that is outstanding. Thus, VA satisfied its duties to notify and assist the Veteran with his claim for an increased rating for his service-connected hearing loss. As such, appellate review may proceed without prejudice to the Veteran. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge 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 issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board hearing in September 2011, the issue on appeal was fully explained by the Veterans Law Judge (VLJ). In addition, the VLJ asked questions to ascertain the existence of any outstanding potentially available evidence which could help substantiate the claim. The Veteran has not suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). II. Merits of the Claim The Veteran asserts that his service-connected bilateral hearing loss is more disabling than currently rated, entitling him to a compensable rating, meaning a rating higher than just zero percent. Disability evaluations are determined by comparing a veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). If the disability more close approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating will be assigned 38 C.F.R. § 4.7 (2012). It is not expected that, in all cases, all will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2012). All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2012). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Consideration of the appropriateness of a staged rating is required for increased rating claims, irrespective of whether it is an initial rating at issue or instead an established rating. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The assigned evaluation for hearing loss is determined by mechanically applying the rating criteria to certified test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examinations. Evaluations of hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. The rating criteria establish eleven auditory acuity levels designated from I to XI. As set forth in the regulations, Tables VI, VIa, and VII are used to calculate the rating to be assigned. See 38 C.F.R. § 4.85, Diagnostic Code 6100 (2012). Additionally, the regulations allow for evaluating exceptional patterns of hearing impairment. When the puretone 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a) (2012). When the puretone threshold is 30 decibels or less at 1000 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). In light of the audiological examination results of record, however, these provisions do not apply in the Veteran's case. Service connection has been established for the disability at issue effective from October 9, 2009. As such, the rating period on appeal is from October 9, 2009. A VA audiological examination was afforded to the Veteran in February 2010. The examiner diagnosed the Veteran with sensorineural hearing loss in the right ear and in the left ear. The examination results documented a puretone threshold average of 27.5 for the right ear and 51.25 for the left ear, at the relevant frequencies of 1000, 2000, 3000 and 4000 Hertz. The Maryland CNC speech recognition score was 98 percent for the right ear and 80 percent for the left ear. Based on those results with the utilization of Table VI, the Veteran had level I hearing impairment in the right ear and level IV hearing impairment in the left ear. Applying the results to Table VII, a zero percent rating is warranted for bilateral hearing loss based on the February 2010 audiological examination results. See 38 C.F.R. § 4.85, Diagnostic Code 6100. Thus, in mechanically applying the rating criteria, the Veteran's bilateral hearing loss has not been disabling enough to warrant a higher rating. The rating criteria simply do not call for a rating in excess of zero percent for this level of hearing impairment. See 38 C.F.R. § 4.85, Diagnostic Code 6100. This is so for the entire rating period on appeal. See Hart, 21 Vet. App. at 509-10. The regulations provide that consideration of whether special monthly compensation (SMC) is required when evaluating any claim for impaired hearing. 38 C.F.R. § 4.85(g). Certain levels of SMC may be awarded for deafness or for deafness in combination with other specified disabilities. However, as the results from February 2010 VA examination do not show that the Veteran is deaf in either ear, a special monthly compensation rating is not warranted. Id. The above determinations are based upon consideration of applicable rating provisions. The February 2010 VA examination describes the impact of the Veteran's hearing impairment on his daily life. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). It was noted by the examiner that the Veteran reported interference with his ability to understand others in group conversation. Additionally, in September 2011 testimony, the Veteran stated that he has to ask people to repeat things and that he must speak to people on a one on one basis. He stated that in a crowded restaurant he would have difficulty communicating. Such effects do not take the Veteran's case outside the norm as to warrant referral for consideration of a higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2012). The symptoms of his disability (impaired hearing) have been accurately reflected by the schedular criteria. Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115- 16 (2008). Finally, the Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total disability rating based on individual unemployability (TDIU) due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Although the February 2010 VA audiological examination report noted the effect of the Veteran's hearing loss on his usual occupation was significant, there was no indication by the Veteran he is unemployable due to his bilateral hearing loss. In September 2011 testimony, the Veteran stated that his hearing loss impacts him socially but not at work. Accordingly, the Board concludes a claim for TDIU has not been raised. For the foregoing reasons, the Board finds that the claim for a rating in excess of zero percent for bilateral hearing loss must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for a compensable initial rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to a compensable initial evaluation for bilateral hearing loss is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs