Citation Nr: 1331927	
Decision Date: 10/03/13    Archive Date: 10/07/13

DOCKET NO.  12-18 328	)	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:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

Anthony M. Flamini, Counsel 


INTRODUCTION

The Veteran served on active duty from August 1973 to February 1977.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

Neither the Veteran nor the evidence associated with his claims file during the pendency of this appeal raised the issue of entitlement to a total disability evaluation based on individual unemployability (TDIU).  As such, this claim will not be considered in this decision.  See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009); see also VAOGCPREC 06-96, 61 Fed. Reg. 66749 (1996).


FINDING OF FACT

The Veteran's bilateral hearing loss is manifested by audiometric test results corresponding to a numeric designation of at most Level I for his right ear and Level I for his left ear.


CONCLUSION OF LAW

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


REASONS AND BASES FOR FINDING AND CONCLUSION

After review of the claims file, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions in this case with respect to the issue on appeal.  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 (2012).  The information contained in an April 2011 letter satisfied the duty to notify provisions.  See 38 U.S.C.A. 
§ 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  Moreover, the Veteran was notified of regulations pertinent to the establishment of an effective date and disability rating in the April 2011 letter.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

The Veteran's service treatment records and VA treatment records have been obtained.  Additionally, the Veteran was provided with a VA audiological examination in August 2012 to determine the current nature and etiology of his bilateral hearing loss.  The Board finds the August 2012 examination adequate for rating purposes because it was performed by an examiner with appropriate expertise and was based on an examination of the Veteran's current level of hearing loss in accordance with VA regulations.  Additionally, it provided sufficient information to decide the issue on appeal.  38 C.F.R. § 3.159(c)(4); Barr v Nicholson, 21 Vet. App. 303 (2007).  In particular, the August 2012 examination report addressed the effects of the Veteran's bilateral hearing loss on his daily activities and overall functioning.  See Martinak v. Nicholson, 21 Vet. App. 447 (2007). 

There is no indication in the record that any additional evidence relevant to the issues decided herein 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/Simmons, 129 S. Ct. 1696 (2009).

The Board has thoroughly reviewed all of the evidence in the Veteran's claims file.  Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed).  The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matter on appeal.  The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed).

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).

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  This involves a factual determination of the current severity of the disability.  Staged ratings are appropriate whenever the factual findings show distinct periods in which a disability exhibits symptoms that warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

The severity of hearing loss is determined by comparing audiometric test results with the specific criteria set forth at 38 C.F.R. § 4.85, Diagnostic Codes 6100 through 6110 (2013).  Evaluations of bilateral 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 puretone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz.  The Rating Schedule allows for such audiometric test results to be translated into a numeric designation ranging from Level I to Level XI, for profound deafness, in order to evaluate the degree of disability from bilateral service-connected defective hearing.  The evaluations derived from the Rating Schedule are intended to make proper allowance for improvement by hearing aids.

In August 2012, the Veteran underwent a VA audiological examination.  Audiometric testing demonstrated puretone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
 20
15
35
35
LEFT
20
20
15
25
60

Based on these findings, the Veteran's average right ear puretone threshold was 26, and his average left ear puretone threshold was 30.  See 38 C.F.R. § 4.85(d).  On speech recognition testing using the Maryland CNC word list, the Veteran scored a 98 percent on his right ear and a 98 percent on his left ear.  The diagnosis was bilateral sensorineural hearing loss.

Applying the August 2012 audiometric results to the Rating Schedule reveals numeric designations of Level I for his right ear and Level I for his 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 noncompensable rating for bilateral hearing loss.

The rating criteria provides for rating exceptional patterns of hearing impairment under the provisions of 38 C.F.R. § 4.86.  None of the Veteran's audiological test results demonstrated a puretone threshold of 55 decibels or more in all four frequencies (1000, 2000, 3000, and 4000 Hertz) in his right or left ear.  As such, evaluation under 38 C.F.R. § 4.86(a) is not warranted.

Additionally, with respect to exceptional patterns of hearing loss, although the evidence of record demonstrated puretone thresholds of 30 decibels or less at 1000 Hertz, bilaterally, the evidence did not show puretone thresholds of 70 decibels or more at 2000 Hertz in either ear.  Thus, the Veteran is not entitled to additional consideration under C.F.R. § 4.86(b) for exceptional patterns of hearing impairment for his service-connected bilateral hearing loss.

The evidence of record did not include other audiometric evaluation results, and his VA treatment records did not include hearing loss among his active problems.

Disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Thus, based on the audiometric findings of record, a compensable rating for bilateral hearing loss is not warranted. 

Generally, evaluating a disability using either the corresponding or an analogous diagnostic codes contained in the Rating Schedule is sufficient.  See 38 C.F.R. 
§§ 4.20, 4.27 (2012).  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.  However, 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, a task performed either by the RO or the Board.  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, the Rating Schedule contemplates then the Veteran's disability picture, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  

Here, the Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the noncompensable rating inadequate.  The Veteran's service-connected bilateral hearing loss is evaluated as an 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 his disability.  Id.  

When applying the results of the relevant audiological examination to the tables set forth in the regulations, the Veteran's service-connected bilateral hearing loss was assigned numeric designations of Level I for his right ear and Level I for his left ear.  The August 2012 examiner explicitly indicated that the Veteran's hearing loss did not impact the ordinary conditions of his daily life, including his ability to work.  There was no indication that the Veteran's occupational or social functionality was otherwise impaired.  When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability picture represented the noncompensable rating already assigned.  Compensable ratings are provided for certain manifestations of bilateral hearing loss, but the evidence demonstrated that those manifestations were not present for any distinct period during the pendency of this appeal.  The criteria for a noncompensable rating reasonably describe the Veteran's disability level and symptomatology.  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).

Finally, in reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against assigning a compensable evaluation to the Veteran's bilateral hearing loss, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to a compensable rating for bilateral hearing loss is denied



____________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs