Citation Nr: 1330962	
Decision Date: 09/26/13    Archive Date: 09/30/13

DOCKET NO.  10-11 077	)	DATE
	)
	)

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


THE ISSUE

Entitlement to a compensable rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Yuan, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1972 to April 1974.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).  A notice of disagreement was filed in February 2009, a statement of the case was issued in January 2010, and a substantive appeal was received in March 2010.

The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file.  A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.
 
FINDING OF FACT

The Veteran has no higher than Level III hearing acuity in either ear.
 
CONCLUSION OF LAW

The criteria for a rating in excess of zero percent for bilateral hearing loss disability have not been met.  38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, Part 4, 4.85, 4.86, Diagnostic Code 6100 (2013).
 

REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant.  38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  Such notice must be provided to a claimant before the agency of original jurisdiction's initial unfavorable decision on a claim for VA benefits.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

Here, the RO provided VCAA notice to the Veteran in a September 2008 letter prior to a December 2008 rating decision.  This letter informed the Veteran of the information necessary to prove entitlement to service connection, the types of evidence VA would assist him in obtaining, and his responsibility to identify relevant evidence.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).  Accordingly, the requirements the United States Court of Appeals for Veterans Claims set out in Pelegrini have been satisfied.

The notice requirements must also apply to all five elements of a service connection claim:  1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  The September 2008 letter provided notice of the types of information needed to substantiate the Veteran's claim.  The letter also gave notice of the types of evidence necessary to establish a disability rating and effective date for the disability on appeal.  

In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  In any event, the Veteran has not demonstrated any prejudice with regard to the content 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).  See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).  As such, no further development is required with respect to the duty to notify under 38 C.F.R. § 3.159(b).

Furthermore, the duty to assist has also been satisfied.  38 U.S.C. § 5103A(a)(1); id. at § 5103A(c)(1); 38 C.F.R. § 3.159(c)(2).  The Veteran's service treatment records, private medical records, and VA medical records have been obtained.  Moreover, the Veteran has not alleged, and the record has not otherwise shown, that the contents of any potentially outstanding treatment records would lend material support to his claim.  Thus, the Board finds that the record as it stands includes adequate competent evidence to support a decision on the merits, and no further action is necessary.  See generally 38 C.F.R. § 3.159(c)(4). 
The Veteran was provided VA examinations in October 2008 and March 2012.  38 C.F.R. § 3.159(c)(4).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the adequacy of such.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Here, the examination rendered was sufficient.  The examiner considered the relevant medical facts and principles, provided the objective data necessary, and addressed the functional impairment of the Veteran's bilateral hearing loss.  See Martinak v. Nicholson, 21 Vet. App. 471 (1995) (holding that VA audiologists must fully describe the functional effects caused by a hearing disability in his or her final report).  Accordingly, the Board finds that VA has satisfied its duty to assist, and to provide an adequate examination under Barr.  See id.; 38 C.F.R. § 3.159(c)(4).

VA has provided the Veteran with the opportunity to submit evidence and argument in support of his claims.  The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159.
 
Increased Rating for Bilateral Hearing Loss

Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  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 required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  

The Veteran's bilateral hearing loss is rated under 38 C.F.R. § 4.85, under which disability ratings are derived from mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).  VA regulations require that an examination for hearing impairment for VA purposes be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test.  38 C.F.R. § 4.85.  Examinations must be conducted without the use of hearing aids.  38 C.F.R. § 4.85(a).  

Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test (Maryland CNC) and the average hearing threshold, as measured by puretone audiometric tests at the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz.  The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through level XI for profound deafness.  

Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination) is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns).  The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone average intersect.  38 C.F.R. § 4.85(b).  The puretone threshold average is the sum of the puretone thresholds at 1,000, 2,000, 3,000 and 4,000 Hertz, divided by 4.  This average is used in all cases to determine the Roman numeral designation for hearing impairment.  38 C.F.R. § 4.85(d).  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 rows and column intersect.  38 C.F.R. § 4.85(e).

VA regulations also provide that in cases of exceptional hearing loss, when the puretone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(a).  The provisions of 38 C.F.R. § 4.86(b) further provide that, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.

On the authorized audiological evaluation in October 2008, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
-
25
40
60
60
LEFT
-
15
20
45
55

Speech audiometry revealed speech recognition ability of 82 percent in the right ear and of 86 percent in the left ear.  The puretone threshold averages were 46 Hertz in the right ear, and 34 Hertz in the left ear.  These numbers translate into Roman numeral designations of III for his right ear, and II for his left ear.  38 C.F.R. § 4.85, Table VI.  Applying 38 C.F.R. § 4.85, Table VII, the Veteran's hearing loss is rated as zero percent disabling.

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




HERTZ



500
1000
2000
3000
4000
RIGHT
-
25
45
60
60
LEFT
-
25
35
55
50

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 in the left ear.  The puretone threshold averages were 48 Hertz in the right ear, and 41 Hertz in the left ear.  These results translate to Roman numeral designations of I for both ears.  38 C.F.R. § 4.85, Table VI.  Applying Table VII, the Veteran's hearing loss is rated as zero percent disabling.

The Board acknowledges the Veteran's contention that the VA audiological evaluation was inadequate for rating purposes because the test was provided in a sound control room.  The Board notes here that 38 C.F.R. § 4.86(b) appears to be designed to remedy this potential problem.  Under this regulatory provision, 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.  This provision compensates for a pattern of hearing impairment that is an extreme handicap in the presence of any environmental noise and appears to acknowledge that a speech discrimination test conducted in a quiet room with amplification of sound does not always reflect the extent of impairment experienced in the ordinary environment.  See 64 Fed. Reg. 25203 (May 11, 1999).  The Veteran's test results do not meet the criteria for application of 38 C.F.R. § 4.86(b).  

It is clear from the evidence of record that a rating in excess of zero percent for bilateral hearing loss is not warranted.  As noted previously, because assignment of disability ratings for hearing impairment are derived by mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluation to assign.  Lendenmann, 3 Vet. App. 345; 30 C.F.R. § 4.85, Tables VI-VII, Diagnostic Code 6100.  Accordingly, the Board is compelled to conclude that the preponderance of the evidence is against entitlement to an increased rating for bilateral hearing loss.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).  


Extraschedular Considerations

In general, the schedular 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.  The application of such schedular criteria was discussed above.  To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment.  38 C.F.R. § 3.321(b)(1). 

The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards.  Id.  The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations.  Floyd v. Brown, 9 Vet. App. 88 (1996).  The Court further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual.  Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). 

In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology.  Id. at 115.  If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. 

If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 116.  If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating.  Id.  

In this case, the symptoms described by the Veteran fit squarely within the criteria found in the relevant Diagnostic Code for the disability at issue.  Moreover, neither his October 2008 nor March 2012 VA examination noted any functional impairment caused by hearing loss beyond difficulty hearing normal conversational speech.  In short, the rating criteria contemplate not only his symptoms but the severity of his disability.  For these reasons, referral for extraschedular consideration is not warranted.


ORDER

A compensable rating for bilateral hearing loss disability is not warranted.  The appeal is denied.



____________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs