Citation Nr: 1331687	
Decision Date: 10/02/13    Archive Date: 10/07/13

DOCKET NO.  10-31 697	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to an initial increased rating for hearing loss, right ear.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

M.W. Kreindler, Counsel



INTRODUCTION

The Veteran served on active duty from August 1959 to August 1961.

This matter comes to the Board of Veterans' Appeals (Board) from a September 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which implemented an August 2009 Board decision granting service connection for hearing loss of the right ear.  The RO assigned a noncompensable rating to hearing loss, right ear, effective January 25, 2006.  A notice of disagreement was filed in October 2009 with regard to the disability rating assigned.  In a January 2010 rating decision, the noncompensable rating was continued.  A statement of the case was issued in June 2010 and a substantive appeal was received in July 2010.

The Veteran requested a Board hearing; however, he withdrew this request in September 2011.  

A September 2010 communication from the Veteran appears to be a request to reopen a claim of service connection for hearing loss of the left ear.  This is referred to the RO for appropriate action.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).



FINDING OF FACT

The Veteran has no higher than level VII hearing acuity in the right ear.


CONCLUSION OF LAW

The criteria for entitlement to a compensable rating for hearing loss of the right ear have not been met.  38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.85, 4.86, Diagnostic Code 6100 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

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. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  

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.  38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The Veteran's claim arises from an appeal of the initial evaluation following the grant of service connection.  Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as 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).  Therefore, no further notice is needed under VCAA.

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The claims file contains the Veteran's service treatment records, as well as post-service VA outpatient records, a statement from a private physician, and lay statements.  He underwent VA examinations in May 2006, December 2009, and January 2012.  The Board has carefully reviewed such evidence, to include statements of the Veteran, and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.  

For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Initial increased rating

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.  

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time.  See Fenderson v. West, 12 Vet. App. 119 (1999).

The current version of the Ratings Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  See 38 C.F.R. § 4.85.

Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing.  Id.

Table VIa will be used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86.  38 C.F.R. § 4.85(c).

When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 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).

When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 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.  38 C.F.R. § 4.86(b).

To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels designated from I for essentially normal acuity, through XI for profound deafness.  38 C.F.R. § 4.85, Tables VI, VII.

A noncompensable evaluation is provided where hearing in the better ear is I and hearing in the poorer ear is I through IX; where hearing in the better ear is II, and hearing in the poorer ear is II to IV; or where there is level III hearing in both ears.  A 10 percent disability rating is warranted where hearing in the better ear is I, and hearing in the poorer ear is X to XI; or where hearing in the better ear is II, and hearing in the poorer ear is V to XI; or where hearing in the better ear is III, and hearing in the poorer ear is IV to VI..  38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100.  

As only the right ear hearing loss is service-connected, in order to determine the percentage evaluation from Table VII, the nonservice-connected left ear will be assigned a Roman Numeral designation for hearing impairment of I.  See 38 C.F.R. § 4.85(f).

Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).

In May 2006, the Veteran underwent a VA examination.  Pure-tone thresholds for the right ear were as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
N/A
50
75
65
65

The pure tone average in the right ear was 64 decibels.  The speech recognition score was 64 percent in the right ear.  Such findings translate to level VI hearing in the right ear.  38 C.F.R. § 4.85, Table VI.  Applying Table VII, Diagnostic Code 6100, this equates to a noncompensable disability rating.  

In December 2009, the Veteran underwent another VA examination.  Pure-tone thresholds for the right ear were as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
N/A
45
75
65
75

The pure tone average in the right ear was 65 decibels.  The speech recognition score was 62 percent in the right ear.  Such findings translate to level VI hearing in the right ear.  38 C.F.R. § 4.85, Table VI.  Applying Table VII, Diagnostic Code 6100, this equates to a noncompensable disability rating.  


In January 2012, the Veteran underwent another VA audiological examination.  Pure-tone thresholds for the right ear were as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
N/A
65
85
80
80

The pure tone average in the right ear was 77.5 decibels (rounded up to 78 decibels).  The speech recognition score was 62 percent in the right ear.  Such findings translate to level VII hearing in the right ear.  38 C.F.R. § 4.85, Table VI.  Applying Table VII, Diagnostic Code 6100, this equates to a noncompensable disability rating.  

The Board acknowledges the Veteran's contentions regarding impact of his hearing loss on his daily activities, and VA's obligation to resolve all reasonable doubt in the Veteran's favor.  However, as noted previously, because assignment of disability ratings for hearing impairment are derived by a 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, supra; 38 C.F.R. § 4.85, Tables VI, VIA, and VII, Diagnostic Code 6100.  Applying the audiological test results most favorable to the Veteran to the regulatory criteria, the Board is compelled to conclude that the preponderance of the evidence is against entitlement to a compensable disability rating for right ear hearing loss disability.  Thus, there is no reasonable doubt to be resolved.  The Veteran may always advance an increased rating claim if the severity of his hearing loss disability should increase in the future.

The Board has also considered the application of 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The Board finds the manifestations of the Veteran's service-connected hearing loss, right ear, are fully contemplated by the rating criteria.  There is nothing exceptional about the Veteran's service-connected disability.  The degree of disability exhibited is contemplated by the rating schedule, specifically the hearing loss criteria.  Thus, the Board finds that the threshold test is not met for referral for extraschedular consideration.  38 C.F.R. § 4.16(b); Thun v. Peake, 22 Vet. App. 111 (2008).  In this regard, the examiner considered the functional impact of the Veteran's hearing loss on his daily life, including his ability to work.  Martinak v. Nicholson, 21 Vet. App. 447 (2007).

The Veteran has not reported unemployability as a result of his hearing loss, right ear.  Entitlement to a TDIU is not raised.  Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009); cf. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009)).  

In summary, for the reasons and bases expressed above, the Board has concluded that a compensable disability rating is not warranted for hearing loss, right ear disability.  Accordingly, the benefit sought on appeal is denied.

ORDER

Entitlement to a compensable rating for hearing loss of the right ear is denied.



____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs