Citation Nr: 1333251 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 11-21 064A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial compensable evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael Sanford, Associate Counsel INTRODUCTION The Veteran had active service from October 1969 to October 1973. This matter comes before the Board of Veterans' Appeals (Board) from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran had been scheduled for a live videoconference hearing at the RO before a Veterans Law Judge in July 2012. The Veteran subsequently withdrew his hearing request in June 2012. See 38 C.F.R. § 20.704(e) (2012). FINDING OF FACT The Veteran's hearing loss has been manifested by numeric designations no greater than Level III for the right ear and no greater than Level III for the left ear. CONCLUSION OF LAW The criteria for establishing entitlement to an initial compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.385, 4.85, 4.86 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In cases such as this, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008); see also Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). There has been no allegation of such error in this case. In any event, the Veteran received notification prior to the initial AOJ decision through a notice letter dated September 2009. The content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran was notified of the evidence not of record that was necessary to substantiate the claim, and was told that he needed to provide the names of the persons, agency, or company who had additional records to help decide his claim. He was also informed that VA would attempt to determine what additional information was needed to process his claim, and that VA would schedule a VA examination if appropriate, obtain VA medical records, obtain service records, and obtain private treatment reports as indicated. The duty to notify the Veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103 (2012). VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). Service treatment records are associated with claims file. All other post-service treatment records and reports identified by the Veteran have also been obtained. The appellant has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran has been afforded two VA examinations for his bilateral hearing loss. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The Board finds these examinations are adequate for the purposes of the evaluating the Veteran's bilateral hearing loss, as both involved a review of the Veteran's pertinent medical history as well as a clinical examination of the Veteran, and provided a review of relevant symptomatology related to the disability on appeal. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issues on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Merits Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). A Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Because the Veteran is challenging the initially assigned disability rating, it has been in continuous appellate status since the original assignment of service connection. The evidence to be considered includes all evidence proffered in support of the original claim. Fenderson v. West, 12 Vet. App. 119 (1999). The assigned evaluation for hearing loss is determined by mechanically applying the rating criteria to certified test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examinations. Evaluations of hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. The rating criteria establish eleven auditory acuity levels designated from I to XI. As set forth in the regulations, Tables VI, VIa, and VII are used to calculate the rating to be assigned. See 38 C.F.R. § 4.85 (Diagnostic Code 6100) (2012). Additionally, the regulations allow for evaluating exceptional patterns of hearing impairment. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a) (2012). When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). In this instance, the Veteran was initially provided an audiogram at his February 2010 VA examination. The audiogram showed pure tone thresholds, in decibels, as follows: 500 Hertz 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Right Ear 40 45 55 65 70 Left Ear 40 45 55 55 70 Decibel average was 57.5 in the right ear and 55 in the left ear. Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 84 percent in the left ear. The examiner diagnosed mild to severe sensorineural hearing loss in both ears. The Veteran described his hearing loss as having a gradual onset. Under Table VI, a numeral of III is assigned for the right ear and a numeral of II is assigned for the left ear, resulting in a noncompensable rating. 38 C.F.R. §§ 4.85, 4.86, Tables VI and VII. The Veteran also underwent private audiological testing in April 2011. The audiogram showed pure tone thresholds, in decibels, as follows: 500 Hertz 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Right Ear 50 50 55 70 70 Left Ear 50 50 55 60 80 Decibel average was 61.25 bilaterally. The private audiologist's report contains the results for a word recognition test. The applicable regulation requires that the Maryland CNC speech discrimination test be used to evaluate hearing loss for VA purposes. See 38 C.F.R. § 4.85(a). It is unclear whether the test employed by the private audiologist was the Maryland CNC test, as required by VA regulations for rating purposes. Nonetheless, even assuming that test is the Maryland CNC test, those results would not warrant an initial compensable rating. That is because those results revealed word recognition ability of 96 percent in the right ear and 100 percent in the left ear. Under Table VI, a numeral of II is assigned for the right ear and a numeral of II is assigned for the left ear, resulting in a noncompensable rating. 38 C.F.R. §§ 4.85, 4.86, Tables VI and VII. As such, even assuming the private audiogram is adequate, by assuming that the word recognition test is the Maryland CNC test, those results would not warrant an initial compensable rating here. Finally, the Veteran was provided another audiogram at his November 2011 VA examination. The audiogram showed pure tone thresholds, in decibels, as follows: 500 Hertz 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Right Ear 40 45 55 70 70 Left Ear 40 45 50 60 75 Decibel average was 60 in the right ear and 58 in the left ear. Speech audiometry revealed speech recognition ability of 84 percent bilaterally. Under Table VI, a numeral of III is assigned for the right ear and a numeral of III is assigned for the left ear, resulting in a noncompensable rating. 38 C.F.R. §§ 4.85, 4.86, Tables VI and VII. Upon review, the Veteran has not met the criteria for a compensable initial rating for bilateral hearing loss. 38 C.F.R. §§ 4.85, 4.86 (Diagnostic Code 6100). As noted above, the most recent VA examination confirmed level III impairment for each ear. Further, at no point has the Veteran shown the level of hearing loss necessary for a compensable rating. The Veteran also does not meet the Table VIA criteria. In other words, he has not met the criteria for a compensable initial rating at anytime. Id. The Board recognizes that the Veteran believes a compensable disability rating is warranted. However, as already noted, the rating assigned for hearing loss is determined by a mechanical application of the rating schedule, which is grounded on numeric designations assigned to audiometric examination results. Lendenmann, 3 Vet. App. at 349. The evidence does not show that the Veteran met the numerical designation for a compensable rating for hearing loss. Id; 38 C.F.R. §§ 4.85, 4.86 (Diagnostic Code 6100). The Board has also considered whether the Veteran's hearing loss presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extra-schedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). 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. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology in this case, as a degree of difficulty in hearing would be expected with any hearing loss. The rating criteria provide for a greater evaluation for additional or more severe symptoms; and as such, his disability picture is contemplated by the rating schedule. The assigned schedular evaluation is adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to a compensable disability evaluation for bilateral hearing loss must be denied. ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs