Citation Nr: 1332015	
Decision Date: 10/03/13    Archive Date: 10/07/13

DOCKET NO.  09-25 142	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to a compensable initial rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Illinois Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

R. Erdheim, Counsel


INTRODUCTION

The Veteran had active service from August 1965 to August 1967.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois.

In May 2012, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge.  

The case was previously before the Board and remanded for additional development in January 2013 and May 2013.  On remand, the RO granted service connection for right ear hearing loss.  Thus, the issue has been rephrased to entitlement to an increased rating for bilateral hearing loss.


FINDING OF FACT

Bilateral hearing loss is manifested by no worse than auditory acuity level I in the left ear, and auditory acuity level I in the right ear.


CONCLUSION OF LAW

The criteria for a compensable rating for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.85, 4.86 Diagnostic Code (DC) 6100 (2012).






REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  Proper VCAA notice must inform the claimant of any information and evidence not in the 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, 186 (2002). 

These notice requirements apply to all five elements of a service connection claim, including: (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/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Proper VCAA notice must be provided to a claimant prior to the initial unfavorable decision on the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). 

With regard to bilateral hearing loss, the Veteran has appealed with respect to the propriety of the initially assigned rating from the original grant of service connection.  VA's General Counsel  has held that no VCAA notice is required for such downstream issues.  VAOPGCPREC 8-2003, 69 Fed. Reg. 25180  (May 5, 2004).  In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated."  Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006).  In this case, the Veteran's claim for service connection for his bilateral hearing loss was granted and initial ratings were assigned.  Therefore, as the Veteran has appealed with respect to the initially assigned rating, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 
Relevant to the duty to assist, the Veteran's service treatment records and post-service VA records have been obtained and considered.  The Veteran has not identified any additional, outstanding records necessary to decide his pending appeal.  The Board has also reviewed the Veteran's paperless Virtual VA claims file and notes no additional records.  The Veteran has also been afforded VA examinations in July 2008 and February 2013 in order adjudicate his initial rating claim.  The Board finds these examinations to be adequate in order to evaluate the Veteran's bilateral hearing loss, as they include an interview with the Veteran, a review of the record, and relevant physical examination, addressing the relevant rating criteria. 

The Veteran was also provided with a hearing related to his present claim.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  In this case, the VLJ explained the issue on appeal and inquired as to any outstanding evidence.  And, the Veteran volunteered his treatment history, describing the nature and severity of his hearing loss.  Accordingly, the Veteran is not shown to be prejudiced on this basis.  The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.  As such, the Board finds that, consistent with Bryant, the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

The Board notes that this claim was remanded twice previously in order to obtain a detailed and thorough VA examination with respect to the Veteran's hearing loss disaibllity.  As described above, such has been accomplished.

Thus, the Board finds that VA has fully satisfied the duty to assist.  In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided).  VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding.  Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. 

II.  Analysis

Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity.  Separate diagnostic codes identify the various disabilities.  38 C.F.R. Part 4 (2012).  When rating a service-connected disability, the entire history must be borne in mind.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2012).  The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 

The Veteran's service-connected bilateral hearing loss is rated as 0 percent disabling under 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100.  The Veteran contends that his hearing disability is worse than the currently assigned evaluation and he is entitled to a higher rating for his bilateral hearing loss.

Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second.  To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness.  38 C.F.R. § 4.85(h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met.  The assignment of disability ratings for hearing impairment is 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). 

The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests.  These results are then charted on Table VI, Table VIA, in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule.  38 C.F.R. § 4.85.  An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  38 C.F.R. § 4.86.

Turning to the evidence of record, on July 2008 VA examination, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
20
50
75
LEFT
15
20
20
65
75

The pure tone threshold averages were 41 in the right ear and 45 in the left ear.  Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 92 percent in the left ear.



On February 2013 VA examination, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
15
60
65
LEFT
15
10
25
60
70

The pure tone threshold averages were 39 in the right ear and 41 in the left ear.  Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 percent in the left ear.

For the left ear, the average pure tone threshold of 41 and 45 decibels, along with a speech discrimination scores of 94 and 92 percent, warrants a designation of Roman Numeral I, under Table VI of 38 C.F.R. § 4.85.  For the right ear, the average pure tone threshold of 39 and 41 decibels, along with a speech discrimination score of 96 percent, warrants a designation of Roman Numeral I, under Table VI of 38 C.F.R. § 4.85.  Under Table VII of 38 C.F.R. § 4.85, where the left ear is Roman Numeral I and the right ear is Roman Numeral I, the appropriate rating is 0 percent under DC 6100. 

The Board has also considered whether a higher rating is warranted based upon functional impairment related to hearing loss.  The Board notes the Veteran's reports that his hearing loss makes it so that others must repeat themselves and he has trouble hearing the television.  However, he also stated at his hearing that he did not wish to wear hearing aids.  The evidence does not demonstrate that the Veteran's hearing loss causes functional impairment such that the Veteran is unable to tend to activities of daily living.  

In this case, the Board finds that the requirements for a compensable rating are not met based on the demonstrated levels of hearing impairment, emphasizing that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered.  Thus, a compensable rating for bilateral hearing loss must be denied.

III.  Other Considerations

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record.  The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability.  Id.   In this case, the Board finds that a claim for a TDIU was not expressly raised by the Veteran or reasonably raised by the record.  In this regard, while the Veteran has not stated, and the evidence does not suggest, that his hearing loss alone renders him unemployable. 

An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable.  38 C.F.R. § 3.321(b)(1). 

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321  are applied.  Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry.  First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. 
Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization."  Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating.  Id.  

The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected hearing loss with the established criteria found in the rating schedule.  As discussed in detail previously, the Veteran's symptomatology is fully addressed by the rating criteria under which such disability is rated.  There are no additional symptoms that are not addressed by the rating schedule.  Therefore, the Board finds that rating criteria reasonably describes the Veteran's disability level and symptomatology for his service-connected disability.  Higher ratings are available for hearing loss, however, the Veteran does not meet that criteria.  As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture.  Moreover, to the extent that the Veteran's hearing loss may interfere with his employability, such interference is addressed by the schedular rating criteria.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Therefore, the Board finds that there are no attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization.  Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted.  Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). 

The Board has considered whether a higher rating might be warranted for any period of time during the pendency of this appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  However, the weight of the credible evidence demonstrates that a compensable rating for bilateral hearing loss is not warranted anytime during the appeal period.  As the preponderance of the evidence is against the claim, the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

A compensable rating for bilateral hearing loss is denied.



____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs