Citation Nr: 1334062	
Decision Date: 10/28/13    Archive Date: 11/06/13

DOCKET NO.  09-25 989	)	DATE
	)
	)

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


THE ISSUE

Entitlement to an increased (compensable) rating for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

M.W. Kreindler, Counsel


INTRODUCTION

The Veteran served on active duty from October 1964 to October 1968.

This matter came to the Board of Veterans' Appeals (Board) from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which denied entitlement to an increased (compensable) rating for bilateral hearing loss.  

The Veteran and his spouse provided testimony before the undersigned at the RO in August 2011; the transcript is of record.  

This matter was remanded in November 2011.


FINDING OF FACT

The Veteran has no worse than level I hearing loss in each ear.


CONCLUSION OF LAW

The criteria for entitlement to a compensable rating for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.85, 4.86, Diagnostic Code 6100 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  

Proper notice from VA must inform the claimant of any information and medical or lay 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.  38 C.F.R. § 3.159(b)(1).  

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

In a claim for increase, the VCAA requires notice that the claim can be substantiated by evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).

Here, the Veteran was sent a letter in May 2007 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal.  The letter also explained what type of information and evidence was needed to establish an effective date.  Accordingly, no further development is required with respect to the duty to notify.  In May 2009, the Veteran was issued notice in compliance with Vazquez.  The timing deficiency was cured by readjudication of the claim in a supplemental statement of the case issued in June 2009.  Mayfield.

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

All necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The claims file contains the Veteran's VA and private treatment records, lay statements from co-workers, and testimony from the Veteran and his spouse.  He underwent VA examinations in July 2007 and December 2011.  In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability.  Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  The December 2011 examination report included the Veteran's reports of functional impairment.

The Board's remand sought to afford the Veteran a current examination.  The agency of original jurisdiction (AOJ) complied with the remand instructions by affording him the December 2011 examination.

The Board has perused the medical and lay records and testimony for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.  

The United States Court of Appeals for Veterans Claims has interpreted the provisions of 38 C.F.R. § 3.103(c)(2) as imposing two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam).  At the Veteran's hearing the issues were identified, namely the need for evidence of worsening hearing loss disability.  There was a discussion of possible evidence that could substantiate the claims.  That discussion led to the Board remand in an effort to obtain such evidence.

For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).



Increased rating

Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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.  

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 

The Ratings Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  See 38 C.F.R. § 4.85.

Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing.  Id.

Table VIa will be used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86.  38 C.F.R. § 4.85(c).

When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(a).

When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  That numeral will then be elevated to the next higher.  38 C.F.R. § 4.86(b).

To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels designated from "I" for essentially normal acuity, through "XI" for profound deafness.  38 C.F.R. § 4.85, Tables VI, VII.

A noncompensable evaluation is provided where hearing in the better ear is I and hearing in the poorer ear is I through IX; where hearing in the better ear is II, and hearing in the poorer ear is II to IV; or where there is level III hearing in both ears.  A 10 percent disability rating is warranted where hearing in the better ear is I, and hearing in the poorer ear is X to XI; or where hearing in the better ear is II, and hearing in the poorer ear is V to XI; or where hearing in the better ear is III, and hearing in the poorer ear is IV to VI..  38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100.  

Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).

In July 2007, the Veteran underwent a VA/QTC examination.  Pure-tone thresholds for the ears were as follows:


HERTZ

1000
2000
3000
4000
RIGHT
15
10
20
55
LEFT
15
15
30
65

The pure tone average in the right ear was 25 decibels and 31 decibels in the left ear.  The speech recognition score was 94 percent in the right ear and 92 percent in the left ear.  Such findings translate to level I hearing in the right ear and level I hearing in the left ear.  38 C.F.R. § 4.85, Table VI.  Applying Table VII, Diagnostic Code 6100, this equates to a noncompensable disability rating.  

The Veteran submitted a private audiogram purportedly conducted in August 2008.  The approximate pure tone thresholds were as follows:


HERTZ

1000
2000
3000
4000
RIGHT
30
25
40
65
LEFT
30
30
40
70

The report did not include any speech recognition scores.  Hence, it cannot be used to rate the Veteran's hearing loss disability.  38 C.F.R. § 4.85.

Statements from the Veteran's wife and co-workers report his difficulty hearing, the need to repeat word when conversing with him, the need to play the television loudly, and 

In December 2011, the Veteran underwent another VA examination.  Pure-tone thresholds for the ears were as follows:


HERTZ

1000
2000
3000
4000
RIGHT
25
10
20
60
LEFT
25
20
40
65

The pure tone average in the right ear was 29 decibels and 38 decibels in the left.  The speech recognition score was 98 percent in the right ear and 94 percent in the left.  Such findings translate to level I hearing in the right ear and level I hearing in the left ear.  38 C.F.R. § 4.85, Table VI.  Applying Table VII, Diagnostic Code 6100, this equates to a noncompensable disability rating.  

The Board acknowledges the Veteran's reports, and those of his wife and co-workers, regarding impact of his hearing loss on his daily activities, including difficulty hearing in the presence of background noise.  The rating criteria are intended to compensate for the impairment resulting from the hearing loss disability.  38 C.F.R. §§ 4.1, 4.85.  The Veteran's disability does not approximate the criteria for a compensable rating, notwithstanding the reported functional impairment.  Lendenmann, supra; 38 C.F.R. § 4.85, Tables VI, VIA, and VII, Diagnostic Code 6100.  

Applying the audiologic test results most favorable to the Veteran to the regulatory criteria, the Board is compelled to conclude that the preponderance of the evidence is against entitlement to a compensable disability rating for bilateral hearing loss disability.  Thus, there is no reasonable doubt to be resolved.  The Veteran may always advance an increased rating claim if the severity of his hearing loss disability should increase in the future.

The Board has also considered the application of 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The Board finds the manifestations of the Veteran's service-connected bilateral hearing loss are fully contemplated by the rating criteria.  There is nothing exceptional about the Veteran's service-connected disability.  The degree of disability is contemplated by the rating schedule, specifically the hearing loss criteria.  Thus, the Board finds that the threshold test is not met for referral for extraschedular consideration.  38 C.F.R. § 4.16(b); Thun v. Peake, 22 Vet. App. 111 (2008).

While the Veteran has reported that his hearing loss has an impact on communications while at work, he has not reported unemployability.  Entitlement to a TDIU is not raised.  Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009); cf. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  

In summary, for the reasons and bases expressed above, the Board has concluded that a compensable disability rating is not warranted for bilateral hearing loss.  Accordingly, the benefit sought on appeal is denied.


ORDER

Entitlement to a compensable rating for bilateral hearing loss is denied.



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs