Citation Nr: 1330920	
Decision Date: 09/25/13    Archive Date: 09/30/13

DOCKET NO.  09-24 233	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to a compensable disability rating for bilateral hearing loss, prior to August 19, 2013.

2.  Entitlement to a disability rating in excess of 20 percent for bilateral hearing loss, beginning August 19, 2013.  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

Appellant and spouse




ATTORNEY FOR THE BOARD

D. Havelka, Counsel


INTRODUCTION

The Veteran served on active duty from August 1966 to June 1970.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  


FINDINGS OF FACT

1.  Prior to August 19, 2013, the evidence of record shows that the Veteran's service-connected hearing loss has been manifested by no more than Level II hearing acuity, bilaterally.

2.  The evidence of record shows that as of August 19, 2013, the Veteran's service-connected bilateral hearing loss is manifested by no more than Level III hearing acuity in the right ear, and no more than Level VIII hearing acuity in the left ear.


CONCLUSIONS OF LAW

1.  The criteria for a compensable disability rating for bilateral hearing loss for the period of time prior to August 19, 2013, have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2013).

2.  The criteria for a disability rating in excess of 20 percent for bilateral hearing loss, beginning on August 19, 2013, have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2013).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). 

Proper notice from VA must inform the claimant of any information and medical or lay 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.  Quartuccio v. Principi, 16 Vet. App. 183 (2002). 

The Veteran has been provided the requisite notice with respect to his claim for an increased disability rating for his service-connected bilateral hearing loss by a letter dated November 2011, which was prior to the rating decision denying the benefit sought.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112; Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law  imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).   

VA has obtained available private medical records; service treatment records; VA examination reports, assisted the Veteran in obtaining evidence; and, afforded him the opportunity to present written statements and evidence.  All known, identified, and available records relevant to the issue on appeal have been obtained and associated with the evidence of record and he has not contended otherwise.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The Veteran was afforded VA examinations in conjunction with his claim for an increased rating for hearing loss in November 2011 and August 2013.  These examination are adequate for rating purposes.  There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 486; Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

Generally, disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4 (2013).  The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013).  In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria.  See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992).

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 (2013).  Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999).  

Under Diagnostic Code 6100, the assignment of disability ratings for service-connected hearing impairment is 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; Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Evaluations for defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 Hertz.  The Rating Schedule establishes eleven auditory acuity levels designated from Level I to Level XI for profound deafness.  38 C.F.R. § 4.85, Diagnostic Code 6100. 

A July 2006 rating decision granted service connection for left ear hearing loss and assigned a noncompensable disability rating.  At the same time, service connection for right ear hearing loss was denied because the evidence of record did not show that the Veteran had a current right ear hearing loss disability.  See 38 C.F.R. § 3.385 (2013).  

In October 2011, the Veteran filed a claim for an increased disability rating for his service-connected left ear hearing loss.  In December 2011, he submitted copies of non-VA medical evidence including Air Force audiogram results for February 2004 and June 2010.  Also submitted was an Air Force hearing test report dated August 2011; however, this report contains pure tone and speech audiometery data, it does not identify the standard used for the speech testing.  Finally, he also submitted a report dated October 2011, which was related to a hearing aid purchase and does not contain any speech audiometry data.  Accordingly, this evidence is inadequate to rate the Veteran's service-connected hearing loss.

In November 2011, a VA Audiology examination of the Veteran was conducted.  The Veteran reported that his functional impairment from hearing loss was difficulty understanding normal conversation and "difficulty hearing sounds and alarms on equipment when performing maintenance."  VA audiological evaluation was conducted.  Pure tone thresholds, in decibels, were as follows:


HERTZ

1000
2000
3000
4000
RIGHT
10
5
20
25
LEFT
25
25
45
60

Based on these results, the average right ear puretone threshold was 15 decibels, and the average left ear puretone threshold was 38.75 decibels.  Speech recognition testing using the Maryland CNC word list resulted in a score of 86 percent for the right ear, and 84 percent for the left ear.  As a result of the examination results, service connection for right ear hearing loss was granted.  38 C.F.R. § 3.385.  Accordingly, the Veteran's hearing loss disability was evaluated as bilateral hearing loss.  

Applying the above results from the November 2011 VA examination report to the Rating Schedule, shows Level II hearing acuity, bilaterally.  See 38 C.F.R. § 4.85, Table VI, Diagnostic Code 6100.  Applying these findings to 38 C.F.R. § 4.85, Table VII of the Rating Schedule results in a noncompensable disability rating for bilateral hearing loss under Diagnostic Code 6100.

In May 2013, the Veteran testified at a hearing before the Board that his service-connected hearing loss disability had increased since the November 2011 examination.  Accordingly, the case was remanded for additional examination.  

At an August 19, 2013, VA audiological evaluation, the Veteran reported that his functional impairment from hearing loss was difficulty understanding his family members.  Pure tone thresholds, in decibels, were as follows:


HERTZ

1000
2000
3000
4000
RIGHT
10
25
40
50
LEFT
35
40
55
70

Based on these results, the average right ear puretone threshold was 31.25 decibels, and the average left ear puretone threshold was 50 decibels.  Speech recognition testing using the Maryland CNC word list resulted in a score of 80 percent for the right ear, and 50 percent for the left ear.  Applying the above results from the August 2013 VA examination report to the Rating Schedule, shows Level III hearing acuity in the right ear, and Level VIII hearing acuity in the left ear.  See 38 C.F.R. § 4.85, Table VI, Diagnostic Code 6100.  Applying these findings to 38 C.F.R. § 4.85, Table VII of the Rating Schedule results in a 20 percent disability rating for bilateral hearing loss under Diagnostic Code 6100.

In certain situations, the Rating Schedule provides for rating exceptional patterns of hearing impairment.  38 C.F.R. § 4.86 (2013).  When the pure tone thresholds at the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more, or when the pure tone thresholds are 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be determined from either Table VI or Table VIa, whichever results in the higher numeral.  That numeral will then be elevated to the next highest Roman numeral. Id.  Based on the findings of the November 2011 and August 2013 VA audiology examinations, neither the Veteran's right nor left ear hearing acuity satisfies the regulatory requirements for a pattern of exceptional hearing impairment.  Id. 

Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient.  38 C.F.R. §§ 4.20, 4.27 (2013).  However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability.  Nonetheless, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating.  38 C.F.R. § 3.321(b) (2013). 

The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability.  Thun, 22 Vet. App. at 115.  If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. 

The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the assigned rating inadequate.  The Veteran's service-connected bilateral hearing loss is evaluated as impairment of auditory acuity pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability.  When comparing the findings of the Veteran's audiological evaluations with the requisite criteria of the Rating Schedule, the Board finds that the Veteran's bilateral hearing loss disability is congruent with the disability picture represented by a noncompensable disability rating prior to August 19, 2013, and a 20 percent disability rating since August 19, 2013.  Ratings in excess of those assigned above are provided for by the regulations for certain manifestations of bilateral hearing loss, but the medical evidence demonstrates that those manifestations are not present.  Consequently, the Board concludes that the schedular evaluation is adequate and that referral of the Veteran's case for extraschedular consideration is not required.  See 38 C.F.R. § 4.85, Diagnostic Code 6100; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). 

The evidence shows no distinct periods of time during the appeal period, other than the staged ratings assigned, when the Veteran's service-connected hearing loss disability varied to such an extent that a rating greater or less than the ratings currently assigned would be warranted.  Fenderson v. West, 12 Vet. App. 119, 126 (1999); See Hart v. Mansfield, 21 Vet. App. 505 (2007). 

Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claims for disability ratings in excess of those assigned for his hearing loss for the periods of time in question, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).



ORDER

A compensable disability rating for bilateral hearing loss prior to August 19, 2013, is denied.  

A disability rating in excess of 20 percent for bilateral hearing loss, since August 19, 2013, is denied.  



____________________________________________
JOY A. MCDONALD 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs