Citation Nr: 1334110 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 13-06 578 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to a compensable disability rating for service-connected bilateral hearing loss. ATTORNEY FOR THE BOARD C. Boyd, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The record reveals that the Veteran requested a Travel Board hearing in conjunction with his appeal. The Veteran was scheduled for a hearing on September 9, 2013, but he did not report. The Veteran has not requested another hearing and, therefore, the Veteran's hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d). In addition to a paper claims file, there is a Virtual VA electronic file. The Board has reviewed both files prior to reaching this decision. FINDINGS OF FACT At its most severe, the Veteran's service-connected bilateral hearing loss is manifested by Level I hearing acuity bilaterally. CONCLUSION OF LAW The criteria for a compensable rating for service-connected bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA requires that VA inform a claimant about the information and evidence not of record that is necessary to substantiate the claim, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23353 -23356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. VCAA notice must be provided before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with a VCAA notification letter in December 2011, prior to the unfavorable AOJ rating decision issued in February 2012. The pre-adjudicatory VCAA notice advised the Veteran of how VA would assist him in developing his claim, and his and VA's obligations in providing such evidence for consideration. This letter also informed him of the evidence necessary to substantiate disability ratings and effective dates. Thus, the Board concludes that the Veteran was provided with all necessary VCAA notice prior to adjudication of the claim. VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim and providing him with adequate audiological examinations. The Veteran's service treatment records and the January 2012 VA audiological examination report were associated with the claims file. The Veteran has not identified any additional records that VA needs to obtain for an equitable disposition of the claim. With regard to the VA examination, the Board observes that once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, the examiner reviewed the claims file, documented the Veteran's subjective complaints and relevant medical history, and examined the Veteran, to include administering the necessary audiological testing. The examination report provided the information required to determine the appropriate disability rating under the schedular criteria. In addition to dictating objective test results on a VA audiological examination report, the audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447 (2007). In the present case, the January 2012 examiner noted that the Veteran's hearing loss impacted his daily life and that he complained of having to ask people to repeat. The Board has the entire record for review and finds that the requirement that the functional effects of the hearing disability be described has been effectively met. In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claim without further development and additional efforts to assist or notify the Veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claim. II. Entitlement to a Compensable Rating The Veteran's service-connected bilateral hearing loss is currently assigned a noncompensable rating evaluation pursuant to 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2013). He believes his ears were damaged during active duty and a 10 percent rating is warranted. 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 (Maryland CNC) 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), Tables VI, VIA (2013). In order to establish entitlement to a compensable rating for hearing loss, certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss must be met. The results of the pure tone audiometry test and speech discrimination test are 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. Table VIA will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when an exceptional pattern of hearing loss is shown, specifically 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. When the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more in a particular ear, determination of the level of hearing acuity in that ear will be made using either Table VI or Table VIA, whichever results in the higher numeral. Id. Here, a January 2012 audiogram revealed the following pure tone thresholds, measured in decibels: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 20 20 60 55 65 Left Ear 20 20 50 60 70 The average decibel loss was 50 decibels in the right ear and 50 decibels in the left ear. Speech discrimination scores were 96 percent in the right ear and 100 percent in the left ear. Using Table VI, these audiometric test results show the Veteran had Level I hearing acuity bilaterally in January 2012. Applying Table VII to these results, the Veteran's hearing loss does not meet the criteria for a compensable rating at any time during the appeal period. Higher evaluations are assigned for more severe hearing impairment when reflected as such by objective audiological testing. The only evidence of record that the Veteran's hearing loss affects his daily life appears in the January 2012 VA examination report where the Veteran stated he had to ask people to repeat. Otherwise, the Veteran's only statement regarding his hearing loss is that he has "hearing loss due to constant ringing in [his] ears, tinnitus." Notably, the Veteran is service-connected for tinnitus, which is rated at 10 percent, the maximum rating for that disability. III. Extraschedular Considerations The Board has considered the provisions of 38 C.F.R. § 3.321(b)(1) and whether the record shows that the Veteran's bilateral hearing loss is so exceptional or unusual as to warrant the assignment of a higher rating on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1) (2012). 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 Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, 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. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms"(which include marked interference with employment and frequent periods of hospitalization). Here, the rating criteria reasonably describe the claimant's disability level and symptomatology. There is no evidence of record that the Veteran is unable to work or has had to miss work because of his hearing loss or that the rating schedule is inadequate for purposes of rating the Veteran's service-connected disability. Therefore, referral for an extraschedular rating is not warranted. Finally, the Board has considered that a claim for a total disability rating based on individual unemployability (TDIU) is part and parcel of an increased-rating claim when raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board has jurisdiction to consider the Veteran's possible entitlement to a TDIU when the TDIU issue is reasonably indicated by the evidence and is predicated at least in part on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue. See VAOPGCPREC 6-96 (Aug. 16, 1996). See also Caffrey v. Brown, 6 Vet. App. 377 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993); EF v. Derwinski, 1 Vet. App. 324 (1991). In this case, there is no evidence in the record that the Veteran is unemployable or unable to retain or follow substantially gainful employment due to his hearing loss. Therefore, the issue has not been raised and further contemplation of a TDIU is not warranted. Consideration has been given to the applicability of the benefit of the doubt doctrine. However, as reflected by the above discussion, the preponderance of the evidence is against the claim. Therefore, the benefit of the doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7. ORDER A compensable rating for service-connected bilateral hearing loss is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs