Citation Nr: 1334566 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-11 229 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a compensable rating for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1971 to May 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), that denied a compensable rating for bilateral hearing loss. FINDING OF FACT The Veteran's hearing loss is productive of no more than Level I hearing acuity in the right ear and Level III hearing acuity in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for a bilateral hearing loss disability have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100 (2013). Notice and Assistance The appeal arises from the Veteran's disagreement with an evaluation 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 and will not be discussed. 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 medical treatment records, and private treatment records have been obtained; he did not identify any outstanding private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). A VA examination was conducted in March 2009. The Veteran contends that this examination is inadequate for rating purposes because it is over 48 months old. As the Veteran has not asserted and the record does not show that the Veteran's hearing loss has worsened since the examination, the mere passage of time does not render the March 2009 examination inadequate to rate the Veteran's current bilateral hearing loss. See Palczewski v. Nicholson, 21 Vet. App. 174, 180 (2007). There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claim 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); Sanders, 129 S. Ct. 1696; see also Dingess/Hartman, 19 Vet. App. at 486. REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board must evaluate the medical evidence of record since the filing of the claim for an increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's service-connected bilateral hearing loss disability has been evaluated as noncompensable throughout the appeal period under the provisions of Diagnostic Code 6100. In evaluating hearing loss, disability ratings on a schedular basis are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmen v. Principi, 3 Vet. App. 345, 349 (1992). The ratings schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in both ears. See 38 C.F.R. § 4.85. A March 2009 VA audiological examination recorded pure tone thresholds, in decibels, as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Left 25 60 90 95 67.5 Right 25 25 45 90 46.25 Speech recognition was 96 percent in the right ear and 88 percent in the left. Entering the average pure tone thresholds and speech recognition scores into Table VI reveals the numeric designation of hearing impairment is I for the right ear and III for the left ear. Entering the category designations for each ear into Table VII results in a noncompensable evaluation under Diagnostic Code 6100. Id. The Board has considered and accepts statements of the Veteran's roommate as to the Veteran's hearing difficulty. The Board also acknowledged the Veteran's assertion that his bilateral hearing loss is worse than a noncompensable evaluation and that he is entitled to a higher evaluation for such hearing loss throughout the appeal period. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment. While the Veteran and his roommate are competent to report decreased hearing ability, they are not shown to possess the requisite training or skill to provide a competent opinion on the severity of the Veteran's disability for rating purposes and their opinions regarding the degree of the Veteran's disability are of no probative value. See Moray v. Brown, 2 Vet. App. 211, 214 (1993). There is no probative evidence of record to support a compensable evaluation for the Veteran's bilateral hearing loss disability on a scheduler basis at any point during the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The evidence shows that the Veteran's service-connected bilateral hearing loss results in difficulty hearing conversational speech and high pitched noises. The Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation for the service-connected bilateral hearing loss disability is adequate, and referral is not required. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1) (2013). In his March 2010 Substantive Appeal, the Veteran asserts that hearing loss was a contributory factor in his involuntary termination in January 2007 for being viewed by people as uncooperative. However, the Veteran has not asserted, and the record does not reflect, that he is unemployable or unable to secure or follow a substantially gainful occupation because of his bilateral disability. Accordingly, a claim for a total disability rating based on individual unemployability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The preponderance of the evidence is against the claim for a compensable rating for a bilateral hearing loss disability; there is no doubt to be resolved; and a compensable rating for a bilateral hearing loss disability is not warranted. ORDER A compensable rating for a bilateral hearing loss disability is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs