Citation Nr: 1330682	
Decision Date: 09/24/13    Archive Date: 09/30/13

DOCKET NO.  11-00 821	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to a compensable disability rating for hearing loss.


REPRESENTATION

Veteran represented by:	Military Order of the Purple Heart of the U.S.A.

WITNESS AT HEARING ON APPEAL

The Veteran 
ATTORNEY FOR THE BOARD

D. Johnson, Counsel







INTRODUCTION

Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket.

The Veteran served on active duty from November 1956 to November 1960.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in February 2010 of a Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran appeared at a hearing before the undersigned Veterans Law Judge in February 2013.  A transcript of that hearing is of record.

In March 2013 the Board remanded the claim for additional development which has been completed.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

In July 2013 additional medical evidence was submitted with a waiver of initial consideration of the evidence by the RO pursuant to 38 C.F.R. § 20.1304. 


FINDING OF FACT

On VA audiology examinations in September 2009 and in May 2013, the Veteran had Level I hearing in the right ear and Level II hearing in the left ear.

CONCLUSIONS OF LAW

The criteria for a compensable rating for bilateral hearing loss had not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.85, 4.86, DC 6100 (2013). 



Veterans Claims Assistance Act of 2000 (VCAA)

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.

This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection.  Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial and will not be discussed.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

VA also has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service treatment records, pertinent treatment records, and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Veteran's VA medical records have been made available via Virtual VA and the Veterans Benefits Management System (VBMS).  The Veteran has not indicated there are any additional records that VA should seek to obtain on his behalf.  

The Veteran was provided with audiologic examinations in September 2009 and May 2013.  The examination reports are adequate for evaluation purposes because the examiners conducted clinical evaluations and described the hearing loss in sufficient detail so that the Board's evaluation is an informed determination.  Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007).  







REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

General Rating Principles

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  Separate Diagnostic Codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions.  Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991).

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 for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings."  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). 

Rating Factors

The Rating Schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on puretone thresholds (vertical columns) and controlled speech discrimination (Maryland CNC) testing (horizontal rows).  


The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect in Table VII.  38 C.F.R. § 4.85(b). 

The "puretone threshold average" as used in Tables VI, is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four.  This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa.  38 C.F.R. § 4.85(d). 

Where there is an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86, the rating may be based solely on puretone threshold testing (using Table VIa).  An exceptional pattern of hearing impairment occurs when the puretone thresholds in each of the four frequencies 1000, 2000, 3000, and 4000 Hertz are 55 decibels or greater or when the puretone threshold at 1000 Hertz is 30 decibels or less, and the threshold at 2000 Hertz is 70 decibels or more.  38 C.F.R. § 4.86(a), (b). 

Table VII, "Percentage Evaluations for Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing.  The percentage evaluation is located at the point where the row and column intersect.  38 C.F.R. § 4.85(e). 

Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). 







Analysis

In a rating decision in February 2010, the RO granted service connection for bilateral hearing loss and assigned a noncompensable rating, effective July 29, 2009.  The Veteran appealed the rating.

On VA examination in September 2009, the Veteran complained of difficulty understanding speech in the presence of noise, but denied any other functional impairment.  The puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz were 30, 45, 60, and 75, respectively, in the RIGHT ear; and 40, 60, 75, and 80, respectively, in the LEFT ear.  The puretone threshold average in the RIGHT ear was 53, and the puretone threshold average in the LEFT ear was 64.  The speech discrimination score was 100 percent in the RIGHT ear and 96 percent in the LEFT ear.  

Applying the results in TABLE VI, the findings yield a numeric designation of Level I for the RIGHT ear, as the average 53 puretone decibel loss is in the range between 50 and 57 average puretone decibel loss, and RIGHT ear speech discrimination score is at least 92 percent; and Level II for the LEFT ear, as the average 64 puretone decibel loss is in the range between 58 and 68 average puretone decibel loss, and LEFT ear speech discrimination score is at least 92 percent.  

Entering the resulting bilateral numeric designation of Level I for the RIGHT and Level II for the LEFT ear to TABLE VII yields a noncompensable or 0 percent disability rating under Diagnostic Code 6100.  

VA records from August 2010 to October 2012 show that the Veteran was fitted for hearings aids.  





In February 2013, the Veteran testified that since the VA examination in September 2009 his hearing loss had worsened especially with crowd noise, with conversational speech, and when two or three people were talking.  He stated that he misunderstood people a lot and he had to turn up the television and radio and he trouble hearing on a cell phone.  He testified that he is retired and he had not had trouble when he was working.

On VA audiological examination in May 2013, the puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz were 15, 20, 50, and 65, respectively, in the RIGHT ear; and 10, 55, 70, 80, respectively, in the LEFT ear.  The puretone threshold average in the RIGHT ear was 38, and the puretone threshold average in the LEFT ear was 54.  The speech discrimination score was 92 percent in the RIGHT ear and 88 percent in the LEFT ear.  

Applying the results in TABLE VI, the findings yield a numeric designation of Level I for the RIGHT ear, as the average 38 puretone decibel loss is in the range between 0 and 41 average puretone decibel loss, and RIGHT ear speech discrimination score is at least 92 percent; and Level II for the LEFT ear, as the average 54 puretone decibel loss is in the range between 50 and 57 average puretone decibel loss, and LEFT ear speech discrimination score is at least 84 percent.  

Entering the resulting bilateral numeric designation of Level I for the RIGHT and Level II for the LEFT ear to TABLE VII yields a noncompensable or 0 percent disability rating under Diagnostic Code 6100.  

In July 2013, the Veteran submitted a copy of a private audiogram.  As the summary of the speech reception thresholds for the right and left ear do not match the average of the four tested frequencies as required under 38 C.F.R. § 4.85, the audiogram is inadequate to rate hearing loss.




Since the puretone threshold at each of the four specified frequencies 1000, 2000, 3000, and 4000 Hertz is not 55 decibels or more, or the puretone threshold is not 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, an exceptional pattern of hearing impairment has not been shown under 38 C.F.R. § 4.86 at any time during the appeal period. 

On the basis of the VA audiograms, hearing loss does not meet the criteria for a compensable rating at any time during the appeal period. 

Extraschedular Consideration

Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating. 

The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate.  This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. 

If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned rating is adequate and referral for an extraschedular rating is not required.  Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 

Comparing the Veteran's disability level and symptomatology to the Rating Schedule, the degree of disability is encompassed by the Rating Schedule and the assigned schedule rating is adequate.  



In other words, the Board finds that the rating criteria reasonably describe the Veteran's disability and symptomatology, and the Veteran does not have any symptomatology not already encompassed by the Rating Schedule.  For this reason, referral for an extraschedular rating is not warranted under 38 C.F.R. § 3.321(b)(1). 

Total Disability Rating for Compensation based on Individual Unemployability 

The Veteran has not raised the claim for a total disabled rating for compensation based on individual unemployability and the claim is not reasonably raised by the record.  See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability or the claim is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase).


ORDER

A compensable rating for bilateral hearing loss is denied. 



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs