Citation Nr: 1329575	
Decision Date: 09/16/13    Archive Date: 09/20/13

DOCKET NO.  12-06 952	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, 
Texas


THE ISSUE

Entitlement to an initial compensable disability rating for 
bilateral hearing loss. 


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

Marne Marotta, Associate Counsel







INTRODUCTION

The Veteran served on active duty from April 1966 to October 
1969.

This case comes before the Board of Veterans' Appeals 
(Board) on appeal from an October 2010 rating decision of 
the Department of Veterans Affairs (VA) Regional Office (RO) 
in Houston, Texas, which granted service connection and a 
noncompensable rating for bilateral hearing loss.
 

FINDING OF FACT

Not more than a level I hearing impairment of either ear is 
shown throughout the entirety of the period from July 2010, 
to the present. 



CONCLUSION OF LAW

The criteria for an initial compensable rating for bilateral 
hearing loss have not been met. 38 U.S.C.A. § 1155, 5107 
(West 2002); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duty to Notify and Assist 

VA has duties to notify and assist claimants in 
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 
5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 
3.159 and 3.326(a).  Pelegrini v. Principi, 18 Vet. App. 112 
(2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); 
Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); 
Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The appeal for the rating for bilateral hearing loss arises 
from the Veteran's disagreement with the initial evaluation 
following the grant of service connection for bilateral 
hearing loss. Once service connection is granted and the 
claim is substantiated, additional notice is not required, 
and 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). No additional discussion 
of the duty to notify is therefore required. 

VA also has a duty to assist the Veteran in the development 
of the claim, which is not abrogated by granting service 
connection. VA has made reasonable efforts to obtain 
relevant records adequately identified by the Veteran. 
Specifically, the information and evidence that have been 
associated with the claims file include: the Veteran's 
service treatment records, post-service VA treatment 
records, and VA examination reports. 

VA provided the Veteran with audiological examinations in 
September 2010 and November 2011. The examiners reviewed the 
medical evidence in the claims folder, recorded the 
Veteran's reported medical history and recorded the clinical 
findings from examination. The Board finds that the 
audiological examinations sufficiently considered the 
Veteran's reports of the functional effects of the bilateral 
hearing loss. 

The Veteran has not identified, and the record does not 
otherwise indicate, any additional existing evidence that is 
necessary for a fair adjudication of the claim that has not 
been obtained.  Bernard v. Brown, 4 Vet. App. 384 (1993).

For the foregoing reasons, the Board finds that VA has 
satisfied its duties to notify and assist. 

II.  Initial Ratings

Disability evaluations are determined by the application of 
a schedule of ratings, which is based on average impairment 
of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 
Separate diagnostic codes identify the various disabilities. 
38 C.F.R. Part 4. When 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. Any reasonable doubt regarding the degree of disability 
is resolved in favor of the Veteran. 38 C.F.R. § 4.3.

In general, when an increase in the disability rating is at 
issue, it is the present level of disability that is of 
primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 
(1994). When the appeal arises from an initial assigned 
rating, consideration must be given to whether staged 
ratings should be assigned to reflect entitlement to a 
higher rating at any point during the pendency of the claim. 
Fenderson v. West, 12 Vet. App. 119 (1999). 

III. Analysis

The October 2010 rating decision on appeal established 
service connection at a noncompensable (0 percent) level 
under DC 6100.  The Veteran has appealed the initial rating 
assigned, contending that the 0 percent rating is inadequate 
for the level of impairment he experiences.  

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.  Lendenmann v. Principi, 3 Vet. App. 345 (1992). 
The regulations set forth eleven auditory acuity levels in 
Table VI, designated from Roman numerals I to XI, according 
to degree of hearing impairment from normal acuity through 
profound deafness. 38 C.F.R. § 4.85.  The appropriate 
auditory acuity level is determined based on a combination 
of the percent of speech discrimination and the puretone 
threshold average. When an audiologist certifies that use of 
the speech discrimination test is not appropriate, then 
Table VIa, "Numeric Designation of Hearing Impairment Based 
Only on Puretone Threshold Average," is used alone to 
determine the auditory acuity level.

In exceptional cases, where the puretone threshold at each 
of the four specified frequencies (1000, 2000, 3000, and 
4000 Hertz ) is 55 decibels or more, an evaluation can be 
based either on Table VI or Table VIa, whichever results in 
a higher evaluation. 38 C.F.R. § 4.86(a) (2012).  Similarly, 
when the puretone threshold is 30 decibels or less at 1000 
Hertz and 70 decibels or more at 2000 Hertz, the Roman 
numeral designation for hearing impairment will be chosen 
from either Table VI or Table VIa, whichever results in the 
higher numeral, and that numeral will then be elevated to 
the next higher Roman numeral. 

Once an acuity level is established for each ear, Table VII, 
"Percentage Evaluations for Hearing Impairment" is used to 
determine the appropriate disability evaluation. The 
appropriate evaluation is determined based on a combination 
of the levels of hearing impairment established for each 
ear.

Here, the Veteran had audiological evaluations in September 
2010 and November 2011.  The September 2010 evaluation noted 
puretone thresholds, in decibels, at 1000, 2000, 3000, and 
4000 Hertz, respectively, of 25, 25, 55, and 65 in the right 
ear, and 25, 40, 70, and 85 in the left ear. The puretone 
threshold averages were 43 and 55 in the right and left 
ears, respectively.  Speech discrimination scores were 98 
percent and 96 percent in the right and left ears, 
respectively.  The Veteran reported that he did not 
experience any overall functional impairment from his 
hearing loss. The recorded scores correlate to auditory 
acuity level I for each ear under Table VI; a noncompensable 
rating is warranted.  

The November 2011 evaluation noted puretone thresholds, in 
decibels, at 1000, 2000, 3000, and 4000 Hertz, respectively, 
of 30, 45, 60, and 65 in the right ear, and 40, 50, 60, and 
70 in the left ear. The puretone threshold averages were 50 
and 55 in the right and left ear, respectively.  Speech 
discrimination scores were 100 percent in both ears. The 
examiner noted the Veteran's subjective complaint was 
problems understanding conversation. The recorded scores 
correlate to auditory acuity level I for each ear under 
Table VI; a noncompensable rating is warranted.  

The medical evidence shows no basis for the assignment of a 
compensable schedular rating for the Veteran's bilateral 
hearing loss under DC 6100 at any point in time from July 
2010, to the present. Fenderson, 12 Vet. App. at 126. There 
is otherwise no showing of any exceptional hearing 
impairment as set forth in 38 C.F.R. § 4.86. 

The Board has considered the Veteran's statements regarding 
the severity of his hearing impairment which are credible 
and probative, but, as noted above, 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. Lendenmann, 3 
Vet. App. 345.  The audiological data presented do not 
permit the assignment of a compensable schedular at any 
point in time. 

In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the 
U.S. Court of Appeals for Veterans Claims (Court) held that, 
relevant to VA audiological examinations, in addition to 
dictating objective test results, a VA audiologist must 
fully describe the functional effects caused by a hearing 
disability in his or her final report. Here, during his 
September 2010 and November 2011 VA audiological 
evaluations, the Veteran reported that he did not experience 
any overall functional impairment from his hearing loss.  

IV. Other Considerations

The rating criteria contemplate speech reception thresholds 
and ability to hear spoken words on Maryland CNC testing.  
The symptoms associated with the Veteran's bilateral hearing 
loss (i.e., difficulty hearing and understanding speech) are 
contemplated by the rating criteria and the medical evidence 
fails to show anything unique or unusual about the Veteran's 
bilateral hearing loss that would render the schedular 
criteria inadequate.  The Veteran's main complaint is 
reduced hearing acuity, which is precisely what is 
contemplated in the rating assigned.  The VA examiners 
specifically noted the Veteran's complaints regarding the 
effect of hearing loss on occupational function and on daily 
activities.  See Martinak v. Nicholson, 21 Vet. App. 447, 
455 (2007). As the available schedular criteria for this 
service-connected disability are adequate, referral for 
consideration of an extraschedular rating is not warranted.  
See Thun v. Peake, 22 Vet. App. 111 (2008).  

The Board has also considered whether an inferred claim for 
a total disability rating based on individual 
unemployability (TDIU) has been raised.  Rice v. Shinseki, 
22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 
(Fed. Cir. 2001).  Here, there is no evidence of 
unemployability due to the Veteran's service-connected 
bilateral hearing loss and further consideration of TDIU is 
not warranted.

As a preponderance of the evidence is against the Veteran's 
claim, his appeal for a compensable initial rating for 
bilateral hearing loss must be denied without application of 
the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b); 
Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert 
v. Derwinski, 1 Vet. App. 49 (1990). 


ORDER

An initial compensable rating for bilateral hearing loss is 
denied.  





____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs