Citation Nr: 1334351 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 13-09 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an initial compensable evaluation for bilateral hearing loss. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to December 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which establish service connection for bilateral hearing loss; a noncompensable (zero percent) evaluation was assigned from May 27, 2010. The Veteran expressed disagreement with the assigned evaluation and perfected an appeal to the Board concerning this down-stream issue. FINDING OF FACT Throughout the pendency of the appeal, the Veteran's bilateral hearing loss was manifested by no worse than Level I hearing acuity in both ears. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.21, 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION After review of the claims file, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions in this case with respect to the issue on appeal. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Proper notice from VA must inform the veteran 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 veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This 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). The Veteran's claim of entitlement to an initial compensable rating for bilateral hearing loss arises from his disagreement with the initial evaluation assigned following the grant of service connection. Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran's service treatment records, VA treatment records, and identified private treatment records have been obtained. The record reflects that the Veteran underwent VA audiological examination in August 2011. In this respect, the Board finds the August 2011 examination adequate for rating purposes because it was performed by an examiner with appropriate expertise, was based on an examination of the Veteran's current level of hearing loss in accordance with VA regulations, and provided sufficient information to decide the issue on appeal. 38 C.F.R. § 3.159(c)(4); Barr v Nicholson, 21 Vet. App. 303 (2007). Additionally, the Board notes the VA examiner addressed the effects of the Veteran's bilateral hearing loss on his activities of daily living. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). There is no indication in the record that any additional evidence relevant to the issue decided herein is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). The Board has thoroughly reviewed all of the evidence in the Veteran's claims file. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matter on appeal. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability, and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. In all claims for increase, VA has a duty to consider the possibility of assigning staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold as measured by puretone audiometric tests. To evaluate the degree of disability resulting from hearing loss, the Rating Schedule establishes 11 levels of impaired efficiency, numerically designated from Level I to Level XI. Level I hearing impairment represents essentially normal hearing acuity for VA compensation purposes, with hearing loss increasing with each level to the profound deafness represented by Level XI. 38 C.F.R. § 4.85, Tables VI, VII (2012). Hearing tests will be conducted without hearing aids, and the results of the above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Exceptional patterns of hearing impairment are addressed in 38 C.F.R. § 4.86. 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 Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). The Veteran's service-connected bilateral hearing loss has been assigned a non-compensable rating pursuant to Diagnostic Code 6100. The Veteran contends that his bilateral hearing loss is more disabling than currently evaluated. Specifically, the Veteran and his representative assert that, while the Veteran's VA issued hearing aids increase his hearing acuity, they are uncomfortable after 8-10 hours of use, and thus, his bilateral hearing loss should be evaluated at 20 percent disabling. See June 2012 and February 2012 statements from the Veteran and an August 2013 statement from the Veteran's representative. Considering the pertinent evidence in light of the governing legal authority, the Board finds that an initial compensable rating for bilateral hearing loss is not warranted. The competent clinical evidence of record consists of an August 2011 VA audiological examination which reflects relevant puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 25 75 85 LEFT 25 25 80 85 On the basis of the numbers shown above, the Veteran's pure tone threshold average for the right ear was recorded as 51.25 decibels. His pure tone threshold average for the left ear was recorded as 53.75 decibels. His speech recognition ability was 92 percent for the right ear and 96 percent for the left ear using the Maryland CNC speech recognition test. Also, as noted above, the examiner addressed the effects of the Veteran's hearing loss on his activities of daily living. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Board also notes that, per VA regulations, the August 2011 VA examination report reflects that the audiometric testing was done without the use of the Veteran's hearing aids. Applying 38 C.F.R. § 4.85, Table VI to the August 2011 VA audiological examination, the Veteran's hearing loss is a Level I impairment in both ears based on a pure tone threshold averages of 50 - 57 decibels in each ear and speech recognition scores ranging from 92 - 100 in both ears. As Level I impairment was demonstrated for both ears, no determination is necessary concerning which is the poorer ear. Applying the criteria from Table VI to Table VII, based on the results of the August 2011 VA audiological examination findings, a noncompensable evaluation is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row I with column I. As described above, the rating criteria also provides for rating exceptional patterns of hearing impairment under the provisions of 38 C.F.R. § 4.86. Here, puretone thresholds at each of the four specified frequencies were not shown to be 55 decibels or more, and therefore, evaluation under 38 C.F.R. § 4.86(a) is not warranted. Furthermore, puretone thresholds were not shown to be 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. As a result, the results did not reveal an exceptional pattern of hearing loss in either ear, and the Veteran is not entitled to additional consideration under 38 C.F.R. § 4.86(b). In light of above, the Board finds the evidence of record does not include any audiological examination results demonstrating a compensable level of bilateral hearing loss during the pendency of the appeal. The Board recognizes the Veteran's assertions regarding the impact of his bilateral hearing loss on his daily life. However, the assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designation assigned after audiometric results are obtained. Thus, the Board must base its determination on the audiological evaluation results of record and is bound by law to apply VA's Rating Schedule based on such results. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1; see also Lendenmann v. Principi, 3 Vet. App. 345 (1992). The examination did, however, address the effects of the Veteran's hearing loss on his activities of daily living as required by Martinak v. Nicholson, 21 Vet. App. 447 (2007). Therefore, applying the competent audiological test results most favorable to the Veteran to the regulatory criteria, the Board is compelled to conclude that an initial compensable evaluation is not warranted for bilateral hearing loss at any time during the pendency of the appeal. In Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (the Court) held that once a Veteran submits evidence of a medical disability, makes a claim for the highest rating possible, and submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2012) that an informal claim identify the benefit sought has been satisfied, and VA must consider whether the claimant is entitled to a total disability rating for compensation on the basis of individual unemployability (TDIU) rating. Rice v. Shinseki, 22 Vet. App. 447, 451 (2009). However, the record does not reflect that the Veteran's bilateral hearing loss renders him unable to follow a substantially gainful occupation. Indeed, the Veteran has not asserted such, and the August 2011 VA examiner specifically stated that this disability would not impact the Veteran's ability to work. Accordingly, further consideration of the issue of TDIU is not required. The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b). In this regard, the Board again notes the Veteran's assertions that his bilateral hearing loss affects his ability to communicate and hear conversation. Further, the Veteran has asserted that, while his VA-issued hearing aids improve his hearing acuity, they become uncomfortable after 8 - 10 hours of use, and thus, his bilateral hearing loss should be evaluated as 20 percent disabling. 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. This involves a comparison between the level of severity and symptomatology of the veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the record does not reflect that the average industrial impairment from the Veteran's hearing loss disability is in excess of that contemplated by the assigned rating. As noted above, results from the adequate audiological evaluations of record reveal, at worse, Level I hearing acuity in both ears, and the Veteran has not submitted any audiological evidence indicating that his hearing loss disability has been worse at any point during the pendency of the appeal. While the Board recognizes the Veteran's assertions that he experiences difficulty communicating and hearing conversation, such manifestations are adequately contemplated by the schedular criteria for a noncompensable rating under Diagnostic Code 6100, which explicitly contemplates Level I hearing acuity, bilaterally. These manifestations of the Veteran's bilateral hearing loss and all other manifestations noted in the record are not exceptional in terms of the disability level and symptomatology of a person with Level I hearing acuity in both ears and have not been shown to be productive of more than the average impairment in earning capacity commensurate with this level of hearing impairment In addition, the record reflects that the Veteran has not required frequent hospitalizations, and there is no indication of marked interference with employment due to his bilateral hearing loss. In sum, the Board has determined that there are no unusual or exceptional factors in this case warranting the referral of the claim for extraschedular consideration. Thus, the Board finds the criteria for an initial compensable rating for bilateral hearing loss have not been met at any time during the pendency of the appeal. Accordingly, there is no basis for a staged rating, and a higher rating must be denied. In reaching this conclusion, the Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against an initial compensable rating for bilateral hearing loss, that doctrine is not applicable. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to an initial compensable evaluation for bilateral hearing loss is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs