Citation Nr: 1333234	
Decision Date: 10/23/13    Archive Date: 10/24/13

DOCKET NO.  11-19 949	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUE

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


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Luke McCabe, Associate Counsel



INTRODUCTION

The Veteran served on active duty from December 1966 to December 1970.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, which, in relevant part, granted the Veteran's claim of entitlement to service connection for bilateral (i.e., right and left ear) sensorineural hearing loss and assigned an initial 0 percent (i.e., noncompensable) rating for this disability retroactively effective from June 15, 2010, the date of receipt of this claim.  His appeal is for a higher initial rating for this disability.  See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a Veteran appeals an initial rating, VA must consider whether to "stage" the rating, meaning assign different ratings at different times since the effective date of the award if there have been occasions when the disability has been more severe than at others).  The RO in Boston, Massachusetts, certified the appeal to the Board.


FINDINGS OF FACT

1.  At worst, in his right ear the Veteran has a puretone threshold average of 34 decibels and speech recognition ability of 96 percent.

2.  At worst, in his left ear he has a puretone threshold average of 45 decibels and speech recognition ability of 90 percent.

3.  Worst case scenario, he therefore has Level I hearing loss in his right ear and Level II in his left ear.



CONCLUSION OF LAW

The criteria are not met for an initial compensable rating for this bilateral sensorineural hearing loss disability.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.85, Diagnostic Code (DC) 6100 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Standard of Review

In deciding this claim, the Board has reviewed all of the evidence in the claims file, both the physical claims file and electronic ("Virtual VA") claims file, and has an obligation to provide an adequate statement of reasons or bases supporting this decision.  See 38 U.S.C.A. § 7104(d)(1) (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  But while the Board must review the entire record, it need not discuss each and every piece of evidence, certainly not in exhaustive detail.  See id.  The analysis below therefore focuses only on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). 

The Board must assess the credibility and weight of all evidence, so both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (2013).  When the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must weigh against a claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).


II.  Procedural Duties

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enhanced VAs duties to notify and assist a claimant in substantiating a claim for VA benefits.  The VCAA was codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, and the implementing VA regulations were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

a.  The Duty to Notify

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence not of record that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  The United States Court of Appeals for Veterans Claims (Court) has held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the Agency of Original Jurisdiction (AOJ) - which, here, is the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  However, if notice was not provided before initially adjudicating a claim or, if provided, it was inadequate or incomplete, to "cure" this timing defect in the provision of the notice and render it harmless VA need only provide all necessary notice, give the claimant opportunity to submit additional evidence and/or argument in response to it, and then readjudicate the claim, including in a statement of the case (SOC) or supplemental SOC (SSOC).  This preserves the intended purpose of the notice.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006).  


Here, a July 2010 letter informed the Veteran of the requirements for establishing his entitlement to service connection for his bilateral hearing loss disability, including of VA's general criteria for assigning a disability rating and his and VA's respective responsibilities in obtaining relevant evidence in support of his claim.  See id.; Quartuccio, 16 Vet. App. at 187.

His appeal concerns the noncompensable rating initially assigned for his bilateral sensorineual hearing loss following the granting of service connection for this disability.  In initial-rating cases, as here, where service connection has been granted and an initial disability rating and effective date assigned, VCAA notice under 38 U.S.C.A. § 5103(a) is no longer required because the purpose that the notice is intended to serve has been fulfilled by the granting of the underlying claim of entitlement to service connection.  Dingess/Hartman, 19 Vet. App. at 490; Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  VA does not then have to provide additional notice concerning the "downstream" disability rating and effective date elements of the claim.  VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).  According to the holding in Goodwin v. Peake, 22 Vet. App. 128 (2008), and its progeny, instead of issuing an additional VCAA notice letter in this situation concerning the "downstream" disability rating and effective date elements of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue an SOC if the disagreement is not resolved, and this occurred in this particular instance.  The RO in Providence, Rhode Island, provided the Veteran this required SOC in July 2011, and the RO in Boston, Massachusetts, since has provided him an SSOC in January 2013.  The SOC and SSOC cite the applicable statutes and regulations governing the assignment of a disability rating and contain discussion of the reasons or bases for not assigning a higher (compensable) initial rating in this instance.  The Veteran therefore has received all required notice concerning this claim.


b.  The Duty to Assist

VA's duty to assist under the VCAA includes helping the claimant to obtain service treatment records (STRs) and other pertinent records, such as concerning his evaluation and treatment since service - whether from VA or private providers - as well as performing an examination or obtaining a medical opinion when necessary to make a decision on the claim.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).

(i) The Duty to Assist by Obtaining Relevant Records

To this end, the Veteran's STRs and post-service VA treatment records were obtained and put in his claims file for consideration, as were the private treatment records he additionally identified as potentially pertinent.  He has not identified any other records or evidence still needing to be obtained.  Thus, the duty to obtain relevant records has been satisfied.  See 38 C.F.R. § 3.159(c).

(ii) The Duty to Assist by Providing an Examination for a Medical Opinion

This duty also has been met.  See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a), 3.327 (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991).

In the disability-rating context, where the evidence of record does not reflect the current state of the Veteran's disability, a new VA examination must be performed.  See 38 C.F.R. § 3.327(a); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  


The Veteran's initial October 2010 VA compensation examination was when he was still trying to establish his underlying entitlement to service connection for his bilateral sensorineural hearing loss, so that was the primary purpose or focus of that evaluation (determining the etiology of this disability and potential relationship with his military service).  See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010).

Since the granting of service connection in the November 2010 decision at issue, however, he has undergone another VA audiological examination for compensation purposes in March 2012, and this time for the specific purpose of reassessing the severity of his bilateral sensorineural hearing loss, which is now the determinative "downstream" issue.  The examination report is adequate for rating purposes, as the examiner performed a thorough audiological examination, reviewed the VA treatment records and prior audiology reports, and described the Veteran's disability in sufficient detail to enable the Board to make a fully informed decision on this claim.  See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994).  Moreover, the examiner discussed the Veteran's functional impairment.  See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) (holding that, in addition to dictating objective hearing test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report).  The VA examiner indicated the Veteran's claims file was not available for review.  However, the examiner's task was to evaluate the Veteran's bilateral hearing loss as it manifested during the time of the examination.  In this respect, the examiner examined the Veteran, recorded all pertinent clinical findings, and also considered his relevant medical history.  There is no indication that a review of the Veteran's claims file would alter the examiner's findings regarding how the Veteran's hearing loss manifested on the day of the examination, or that lack of such review otherwise impacted its adequacy.  See Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997) (noting that review of claims file not required when such review would not change objective findings made on examination); Mariano v. Principi, 17 Vet. App. 305, 311-312 (2003) (noting that range-of-motion measurements are not conclusions drawn by a VA examiner that would be affected by review of the claims file); VAOPGCPREC 20-95 (July 14, 1995) (VA examiner must review a claimant's prior medical records on when such a review is necessary to ensure a fully informed examination or to provide an adequate basis for the examiner's findings or conclusions).  Thus, the March 2012 examination is adequate for rating purposes and no prejudice exists.  See Shinseki v. Sanders 556 U.S. 396, 407 (2009) (holding that whether prejudicial harm exists is a case-by-case determination).

The Veteran has not alleged a material worsening of his bilateral sensorineural hearing loss disability since that more recent VA compensation examination in March 2012, nor is this otherwise shown or suggested by the record on appeal.  Snuffer v. Gober, 10 Vet. App. 400 (1997); Olsen v. Principi, 3 Vet. App. 480 (1992); Proscelle v. Derwinski, 2 Vet. App. 629 (1992); Caffrey v. Brown, 6 Vet. App. 377 (1994); Allday v. Brown, 7 Vet. App. 517 (1995).  At most, he alleges it did not show just how bad his hearing loss was and is, but there is no inherent reason to reject, question or invalidate that VA examiner's findings merely out of hand or just as a simple matter of course.  Cf. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (indicating, albeit in a service-connection context, the requirement of a "contemporaneous" examination does not require a new examination based on the mere passage of time).

Unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate and need not affirmatively establish the adequacy of the examination report or the competence of the examiner.  See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that, although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (similarly holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged).  Indeed, even when this is challenged, the Board may assume the competency of any VA medical examiner, including even nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  See Cox v. Nicholson, 20 Vet. App. 563 (2007).

To reiterate, the Veteran has not stated and there is no other evidence indicating that there has been a material change in the severity of his bilateral sensorinerual hearing loss disability since he was last examined for compensation purposes in March 2012.  See 38 C.F.R. § 3.327(a).  The duty to assist does not require that a claim be remanded solely because of the mere passage of time since an otherwise adequate VA examination was conducted.  VAOPGCPREC 11-95 (April 7, 1995).  Accordingly, VA's duty to obtain a VA examination and opinion has been met.  38 C.F.R. § 3.159(c)(4); Barr, 21 Vet. App. at 312.

c.  VCAA Conclusion

In sum, VAs duties to notify and assist under the VCAA have been satisfied.  The Veteran has had ample opportunity to participate in the development of his claim.  See Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011) (citing Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that any error depriving a claimant of "a meaningful opportunity to participate effectively in the processing of his or her claim . . . . must be considered prejudicial")).  Any defect in the notice or assistance provided did not affect the outcome of this claim or compromise the "essential fairness of the adjudication," and no such defect has been alleged.  See Mayfield v. Nicholson, 19 Vet. App. 103, 116 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  Thus, any error in the notice or assistance provided was harmless, and no prejudice exists.  See Shinseki v. Sanders 556 U.S. 396, 407, 410 (2009) (holding that the "rule of prejudicial error" requires a case-by-case determination as to whether the error in question was harmless, and that it is the burden of the claimant to show the error was harmful by at least providing an explanation as to how the error caused harm); see also 38 U.S.C.A. § 7261(b)(2) (West 2002) (providing that the Court must take due account of the rule of prejudicial error).  Accordingly, the Board may proceed with appellate review of this claim.


III.  Analysis

The Veteran contends that he is entitled to an initial compensable rating for his service-connected bilateral sensorineural hearing loss disability.  He maintains that his hearing loss is more severe than the testing indicates.  But for the reasons and bases that follow, the Board concludes that a compensable rating, at least initially, is not warranted.

VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities.  See 38 U.S.C.A. § 1155; 38 C.F.R., Part IV.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment.  38 C.F.R. § 4.10 (2013).  The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013).  Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  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 to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2013).  All reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor.  38 C.F.R. § 4.3.  The schedule recognizes that disability from distinct injuries or diseases may overlap.  However, the evaluation of the same disability or its manifestation under various diagnoses, which is known as pyramiding, is to be avoided.  See 38 C.F.R. § 4.14 (2013).


In initial-rating cases, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as a "staged" rating.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (extending this practice even to claims that do not involve initial ratings). 

Hearing loss is evaluated under 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100.  In evaluating service-connected hearing loss, disability ratings are derived from a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Hearing loss disability evaluations range from noncompensable, i.e., 10 percent to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second (Hertz (Hz)).  See 38 C.F.R. § 4.85.  The rating schedule establishes eleven auditory acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI for profound deafness.  See id.  VA audiometric examinations are generally conducted using a controlled speech discrimination test together with the results of a puretone audiometry test.  Id.  Table VI in 38 C.F.R. § 4.85 is then used to determine the numeric designation of hearing impairment based on the puretone threshold average from the speech audiometry test and the results of the speech discrimination test.  The vertical lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  See id.  The horizontal columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. See id.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row corresponding to the percentage of discrimination and the horizontal column corresponding to the puretone decibel loss.  Id.  


The percentage evaluation is derived from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column corresponding to the numeric designation for the ear having the better hearing acuity (as determined by Table VI) and the horizontal row corresponding to the numeric designation level for the ear having the poorer hearing acuity (as determined by Table VI).  For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent.  See id. 

Of record is an August 2010 private audiogram which includes the results of audiometric testing, showing puretone thresholds in decibels, as follows:


HERTZ

1000
2000
3000
4000
Average
RIGHT
15
30
45
60
38
LEFT
15
40
55
70
45

The audiogram shows that the right ear had a puretone average of 38 decibels and the left ear had a puretone threshold average of 45 decibels.  A speech discrimination test revealed speech recognition ability of 92 percent in both ears.  The audiologist rendered a diagnosis of mild-to-severe bilateral sensorineural hearing loss.  Using Table VI in 38 C.F.R. § 4.85, the puretone average and speech recognition score are combined to give each ear a numeric designation for use on Table VII to determine the correct disability level.  The right ear had a puretone average of 38 decibels and a speech recognition score of 92 percent.  Thus, it received a designation of I.  See id.  The left ear had a puretone average of 45 decibels and a speech recognition score of 92 percent.  Therefore, it also received a designation of I.  The point where designations I and I intersect on Table VII yields a percentage evaluation of zero, resulting in a noncompensable disability rating.  See id.


The October 2010 VA examination report reflects that audiological testing revealed puretone thresholds in decibels, as follows:


HERTZ

1000
2000
3000
4000
Average
RIGHT
15
25
40
55
34
LEFT
30
35
55
75
49

The audiogram shows that the right ear had a puretone average of 34 decibels and the left ear had a puretone threshold of 49 decibels, as noted by the examiner.  A speech discrimination test revealed speech recognition ability of 96 percent in the right ear and 92 percent in the left ear.  Using Table VI in 38 C.F.R. § 4.85, the puretone average and speech recognition score are combined to give each ear a numeric designation for use on Table VII to determine the correct disability level.  The right ear had a puretone average of 34 decibels and a speech recognition score of 96 percent.  Thus, it received a designation of I.  See id.  The left ear had a puretone average of 49 decibels and a speech recognition score of 92 percent.  Therefore, it also received a designation of I.  The point where designations I and I intersect on Table VII yields a percentage evaluation of zero, resulting in a noncompensable disability rating.  See id.  

The more recent March 2012 VA examination report reflects that audiological testing revealed puretone thresholds in decibels, as follows:


HERTZ

1000
2000
3000
4000
Average
RIGHT
15
25
40
55
34
LEFT
25
35
50
70
45

The audiogram shows that the right ear had a puretone average of 34 decibels and the left ear had a puretone threshold of 45 decibels, as noted by the examiner.  A speech discrimination test revealed speech recognition ability of 96 percent in the right ear and 90 percent in the left ear.  Using Table VI in 38 C.F.R. § 4.85, the puretone average and speech recognition score are combined to give each ear a numeric designation for use on Table VII to determine the correct disability level.  The right ear had a puretone average of 34 decibels and a speech recognition score of 96 percent.  Thus, it received a designation of I.  See id.  The left ear had a puretone average of 45 decibels and a speech recognition score of 90 percent.  Therefore, it received a designation of II.  The left ear is considered the poorer ear for Table VII.  The point where designations I and II intersect on Table VII yields a percentage evaluation of zero, resulting in a noncompensable disability rating.  See id.  

VA regulation also includes two provisions for evaluating Veterans with certain exceptional patterns of hearing impairment that cannot always be accurately assessed under 38 C.F.R. § 4.85 because the speech discrimination test may not reflect the severity of communicative functioning that these Veterans experience.  See 64 Fed. Reg. 25203 (May 11, 1999).  38 C.F.R. § 4.86(a) provides that, if puretone thresholds in each of the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more, an evaluation will be based either on Table VI or Table VIA in 38 C.F.R. § 4.85, whichever results in a higher evaluation.  This provision corrects for the fact that with a 55-decibel threshold level (the level at which speech becomes essentially inaudible) the high level of amplification needed to attempt to conduct a speech discrimination test would be painful to most people, and speech discrimination tests may therefore not be possible or reliable.  See 64 Fed. Reg. 25209 (May 11, 1999).  38 C.F.R. § 4.86(b) provides that, 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, in 38 C.F.R. § 4.85, whichever results in the higher numeral, and that numeral will then be elevated to the next higher Roman numeral.  This provision accounts for a pattern of hearing impairment that is an extreme handicap in the presence of any environmental noise, as 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 id.  

Here, though, neither of the provisions set forth in sections 4.86(a) and 4.86(b) is satisfied by the audiometric results in the private or VA examination reports discussed above.  Thus, they are inapplicable to this claim.

The Board also has considered the functional impairment caused by the Veteran's hearing loss disability.  In this regard, during the March 2012 VA examination the examiner determined the Veteran's hearing loss impacted his daily life in that, "without the use of personal hearing aids," he experiences difficulty hearing when in a group environment or when there is significant background noise.  The prior October 2010 VA audiological examination report reflected the examiner's finding that the Veteran's hearing loss had "significant effects" on his occupation, including "difficulty hearing at a distance and in noisy environments."

The challenges associated with the Veteran's hearing loss described above are contemplated by the rating criteria, which are meant to take into account the average impairment resulting from service-connected disabilities.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  The functional impairment reflected by the examination reports does not establish entitlement to a higher rating absent audiometric and speech discrimination scores showing that his hearing loss has met the schedular criteria for a compensable rating.  See 38 C.F.R. § 4.85; Lendenmann, 3 Vet. App. at 349; see also Martinak v. Nicholson, 21 Vet. App. 447, 456 (2007).

The Board also has considered the Veteran's contention in his June 2013 statement that his hearing loss is more disabling than contemplated by the noncompensable rating assigned.  However, the competent and probative evidence of record, including the private audiological examination and both VA examinations, does not show that the legal criteria for a compensable rating have been met, for the reasons and bases already discussed.

Moreover, these audiometric test results show his bilateral hearing loss disability has not met the schedular criteria for a compensable rating at any time during the pendency of this claim.  See 38 C.F.R. §§ 4.85, 4.86.  Thus, the Board cannot "stage" the rating for this disability.  See Fenderson, 12 Vet. App. at 126.

As well, the Board has considered whether to the address the derivative issue of a total disability rating based on individual unemployability (TDIU).  See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 and 4.19 (2013).  In Rice v. Shinseki, 22 Vet. App. 447, 453 (2009), the Court held that a request for a TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or as part of a claim for increased compensation.  If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel of that claim for an increased rating is the issue of whether a TDIU as a result of that disability is warranted.  Id. at 455.  Here, the Veteran has not stated and the evidence of record does not otherwise suggest that his bilateral hearing loss disability is sufficiently incapacitating as to prevent him from obtaining or maintaining substantially gainful employment.  Thus, the issue of entitlement to a TDIU has not been raised.  See id.  See also Mayhue v. Shinseki, 24 Vet. App. 273 (2011).

The Board has still additionally considered whether the Veteran's claim should be referred for an extra-schedular rating.  See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111, 114 (2008).  Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual Veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability.  Thun, 22 Vet. App. at 114.  However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration.  Id.  The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1).  


In Thun, 22 Vet. App. at 115, the Court held that the determination of whether a claimant is entitled to an extra-schedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry.  First, as a threshold factor, there must be a finding that the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Id.  In this regard, the Board must compare 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.  See id.  If the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, in which case the assigned schedular evaluation is adequate and no referral is required.  Id.  Second, if the schedular criteria are found to be inadequate to evaluate the claimant's disability, the Board must determine whether the exceptional disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization.  Id.  If so, then under the third step of the inquiry the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the claimant's disability picture requires the assignment of an extra-schedular rating.  Id.  

Here, though, referral for extra-schedular consideration is not warranted.  A comparison of the Veteran's bilateral hearing loss and the rating criteria does not show "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321(b)(1).  Specifically, his bilateral hearing loss disability is manifested by difficulty hearing at a distance, in noisy environments, and in groups.  These symptoms and functional impairment are contemplated by 38 C.F.R. § 4.85, DC 6100.  Moreover, he does not have the exceptional pattern of hearing impairment contemplated by 38 C.F.R. § 4.86(a) and (b).  Although the rating criteria applicable to hearing loss are not based on symptoms or functional impairment, but rather on the numeric results of objective audiological testing, they are necessarily designed with a view towards compensating the former.  Specifically, all schedular criteria are meant to take into account the average impairment in earning capacity resulting from service-connected disabilities.  See 38 C.F.R. § 4.1.  As stated in 38 C.F.R. § 4.21 (2013), "[c]oordination of rating with impairment of function will . . . be expected in all instances."  Thus, although a particular diagnostic code may provide for evaluations of a disability in terms of objective clinical data rather than in terms of symptoms or functional impairment - as is the case with hearing loss disabilities - the purpose of the ratings themselves is necessarily to provide compensation for the symptoms and functional impairment caused by the disability in question, particularly with regard to how they affect earning capacity.  The Veteran's difficulty hearing and communicating is precisely the type of symptomatology and functional impairment contemplated by the rating criteria for hearing loss.  The mere fact that they do not mention such symptoms or functional impairment, cannot be a basis in and of itself for extra-schedular referral.  There is no evidence that difficulty hearing and communicating are exceptional or unusual manifestations of a hearing loss disability.  Indeed, as noted in Thun, the rating criteria are averages and need not account for each individual circumstance in order to be adequate for evaluation purposes.  Moreover, none of the audiologists who examined the Veteran indicated that his hearing loss disability was unusual or exceptional. 

Thus, the first step of the inquiry is not satisfied.  See id.  In the absence of this threshold finding, there is no need to consider the second step of the inquiry, namely, whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization.  See id. at 118-19 (holding that the Board's "threshold" finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment).  While the examiner noted "significant effects" on employment, in the absence of an exceptional or unusual disability picture under the first Thun factor, interference with employment is not sufficient by itself to warrant extraschedular referral, as the rating schedule "clearly recognizes that the rated disabilities interfere with employment."  See VAOPGCPREC 6-96 (August 16, 1996).  Therefore, referral for extraschedular consideration is unwarranted.  Thun, 22 Vet. App. at 115.


Accordingly, the preponderance of the evidence is against the Veteran's claim.  Consequently, the benefit-of-the-doubt rule does not apply, and entitlement to an initial compensable rating for his bilateral hearing loss disability is denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55.


ORDER

The claim of entitlement to an initial compensable rating for the bilateral sensorineural hearing loss disability is denied.




____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs