Citation Nr: 1331901	
Decision Date: 10/03/13    Archive Date: 10/07/13

DOCKET NO.  12-18 753	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada


THE ISSUE

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


ATTORNEY FOR THE BOARD

David Gratz, Counsel


INTRODUCTION

The Veteran served on active duty from August 1972 to September 1981.

This matter 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 Reno, Nevada, which granted service connection for the Veteran's bilateral hearing loss and assigned a noncompensable rating as of the May 16, 2010 date of claim.


FINDINGS OF FACT

1.  The results of the August 2010 VA audiological evaluation show that the Veteran had Level I hearing loss in the right ear and Level I hearing loss in the left ear.

2.  The results of the April 2011 private audiological evaluation show that the Veteran had no worse than Level II hearing loss in the right ear and no worse than Level II hearing loss in the left ear.

3.  The results of the August 2012 VA audiological evaluation show that the Veteran has Level I hearing loss in the right ear and Level I hearing loss in the left ear.


CONCLUSION OF LAW

The criteria for an initial compensable disability 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, 4.86 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  Proper notice must inform the claimant of any information and 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 in accordance with 38 C.F.R. § 3.159(b)(1).  Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004).  This notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

VA has met its duty to notify for this claim.  Service connection for bilateral hearing loss was granted in an October 2010 rating decision.  The Veteran is now appealing the downstream issue of the initial rating that was assigned.  The Veteran received a notice letter in June 2010 which included information as to how VA determines the disability rating and effective date.  Therefore, additional notice under the Veterans Claims Assistance Act of 2000 (VCAA) is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1131 (Fed. Cir. 2007), Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

Next, VA has a duty to assist the Veteran in the development of his claim.  This duty includes assisting him in the procurement of pertinent medical records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  In this case, the RO has obtained and associated with the claims file the Veteran's service treatment records, and records of his post-service VA and private treatment.

The Veteran was afforded VA compensation and pension examinations germane to his claim on appeal in August 2010 and August 2012.  These examination reports are adequate because the examiner based her opinions upon consideration of the Veteran's prior medical history, described the disability in sufficient detail so that the Board's evaluations of the claimed disability would be fully informed, and supported all conclusions with analyses that the Board could consider and weigh against contrary opinions.  Additionally, the VA examiner fully described the functional effects caused by the Veteran's bilateral hearing loss.  Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).

For the foregoing reasons, the Board concludes that VA made all reasonable efforts to obtain evidence necessary to substantiate the Veteran's claim.  Therefore, no further assistance to the Veteran with the development of evidence is required.

Initial Rating for Bilateral Hearing Loss

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian life.  Generally, the degree of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Separate Diagnostic Codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the appellant.  38 C.F.R. § 4.3.  The appellant is presumed to be seeking the maximum benefit allowed by law and regulation.  AB v. Brown, 6 Vet. App. 35, (1993).  Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged ratings" is required.  Fenderson v. West 12 Vet. App. 119, 126 (1999).

The Veteran's hearing loss has been evaluated as noncompensable under 38 C.F.R. § 4.85, DC 6100.  This diagnostic code sets out the criteria for evaluating hearing impairment using pure tone threshold averages and speech discrimination scores.  Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

Audiometric results are matched against Table VI to find the numeric designation, and then the designations are matched with Table VII to find the percentage evaluation to be assigned for the hearing impairment.  To evaluate the degree of disability for service-connected hearing loss, the Rating Schedule establishes 11 auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness.  38 C.F.R. § 4.85.  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).

The provisions of section 4.86 address exceptional patterns of hearing loss, which are defined as when each of the pure tone thresholds at 1000, 2000, 3000, and 4000 hertz (Hz) are 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz.  38 C.F.R. § 4.86.  These provisions are inapplicable in this case.

The Veteran contends in his July 2012 substantive appeal and elsewhere that a compensable disability rating for his bilateral hearing loss is warranted.

Following a review of the evidence of record, the Board finds that an initial compensable rating for bilateral hearing loss is not warranted.  In reaching this decision, the Board has reviewed the evidence of record, to include VA and private examination reports and the Veteran's statements.

In an August 2010 VA audiology examination, pure tone thresholds, in decibels, were as follows:

Aug. 2010

HERTZ



1000
2000
3000
4000
RIGHT
10
10
45
65
LEFT
10
25
45
45

The average decibel loss was 33 in the right ear and 31 in the left ear.  Speech discrimination was noted to be 94 percent bilaterally.  The examiner diagnosed normal to moderately severe sensorineural hearing loss in the right ear, and normal to moderate sensorineural hearing loss in the left ear.  The audiometry test results equate to Level I hearing in the right ear using Table VI and Level I in the left ear using Table VI.  38 C.F.R. § 4.85.  Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in the right ear and Level I hearing in the left ear does not result in a rating in excess of the current noncompensable evaluation.

In an April 2011 private audiology examination performed by Michael LeMay, Au.D., pure tone thresholds, in decibels, were as follows:

Apr. 2011

HERTZ



1000
2000
3000
4000
RIGHT
5
5
50
65
LEFT
5
20
50
55

The average decibel loss was 31 in the right ear and 33 in the left ear.  Speech discrimination was noted to be 88 percent in the right ear and 84 percent in the left ear.  The examiner diagnosed precipitous bilateral high frequency sensorineural hearing loss.  The audiometry test results equate to Level II hearing in the right ear using Table VI and Level II in the left ear using Table VI.  38 C.F.R. § 4.85.  Applying the percentage ratings for hearing impairment found in Table VII, Level II hearing in the right ear and Level II hearing in the left ear does not result in a rating in excess of the current noncompensable evaluation.  Alternatively, discounting the speech discrimination scores because Dr. LeMay did not expressly use the Maryland CNC test would result in Level I hearing in the right ear using Table VIA and Level I in the left ear using Table VIA.  38 C.F.R. § 4.85.  Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in the right ear and Level I hearing in the left ear likewise does not result in a rating in excess of the current noncompensable evaluation.

In an August 2012 VA audiology examination, pure tone thresholds, in decibels, were as follows:

Aug. 2012

HERTZ



1000
2000
3000
4000
RIGHT
10
10
50
65
LEFT
10
25
50
60

The average decibel loss was 34 in the right ear and 36 in the left ear.  Speech discrimination was noted to be 96 percent in the right ear and 94 percent in the left ear.  The examiner diagnosed bilateral sensorineural hearing loss.  The audiometry test results equate to Level I hearing in the right ear using Table VI and Level I in the left ear using Table VI.  38 C.F.R. § 4.85.  Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in the right ear and Level I hearing in the left ear does not result in a rating in excess of the current noncompensable evaluation.

In evaluating the Veteran's claim, the evidence does not support the assignment of a compensable rating for bilateral hearing loss.  To the extent that the Veteran's hearing is impaired, as the Veteran has asserted, the fact that his hearing acuity is less than optimal does not by itself establish entitlement to a compensable disability rating.  To the contrary, under the Rating Schedule a higher rating can be awarded only when loss of hearing has reached a specified measurable level.  Therefore, the preponderance of the evidence is against the claim and entitlement to a compensable evaluation is not warranted.

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  Here, the applicable rating criteria adequately contemplate the manifestations of the Veteran's bilateral hearing loss, which include difficulty hearing.  The rating criteria are therefore adequate to evaluate the bilateral hearing loss, and referral for consideration of an extraschedular rating is not warranted.

Finally, the Court has held that a total disability rating based on individual unemployability (TDIU) is a part of a claim for increased rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a TDIU.  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  The Veteran has not submitted evidence of unemployability due to his bilateral hearing loss, and his bilateral hearing loss symptoms are not of such severity as to prevent him from being able to secure or follow a substantially gainful occupation.  Thus, TDIU is not raised by the record.


ORDER

A compensable evaluation for bilateral hearing loss is denied.



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs