Citation Nr: 1334990	
Decision Date: 10/31/13    Archive Date: 11/06/13

DOCKET NO.  10-18 155	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to an initial disability rating in excess of 10 percent for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

David Gratz, Counsel


INTRODUCTION

The Veteran served on active duty from August 1962 to August 1964.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

In April 2011, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge.  In August 2013, the Board remanded this case for further development.  The case has returned to the Board for appellate review.

In an October 2013 letter, the Veteran reported problems with his shoulders and lumbosacral spine.  The RO should contact the Veteran or his representative to clarify whether he wishes to file a claim for service connection for one or more of those disorders.


FINDING OF FACT

The Veteran's bilateral ear hearing loss is manifested by no more than Level XI for the right ear and Level I for the left ear.


CONCLUSION OF LAW

The criteria for an initial evaluation for bilateral hearing loss in excess of 10 percent are not met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.85, 4.86, Diagnostic Code 6100 (2013).




REASONS AND BASES FOR FINDING AND CONCLUSIONS

Duties to Notify and Assist

VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b).

This claim arises from a disagreement with the initial disability rating that was assigned following the grant of service connection for bilateral hearing loss.  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).

VA also 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.  The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained.  

The Veteran was provided with adequate VA examinations in connection with his present claim in June 2010 and August 2013.  The Board finds that such VA examinations are adequate to decide the issue as they are predicated on a review of the complete record.  Specifically, the opinions proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed.  Furthermore, the examiners fully described the functional effects caused by the Veteran's bilateral hearing loss.  Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  Therefore, the Board finds that these examination reports are adequate for the purpose of deciding the claim on appeal regarding the Veteran's bilateral hearing loss.  Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).

Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required.

This claim was remanded by the Board for additional development in August 2013.  There has been substantial compliance with the Board's remand directives, insofar as VA has requested additional treatment records and provided the Veteran with a new examination in August 2013.  Stegall v. West, 11 Vet. App. 268 (1998).

The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his claim.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the hearing, the VLJ did not note the bases of the prior determinations or the elements that were lacking to substantiate the claim.  The VLJ asked specific questions, however, directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating.  The VLJ did not specifically seek to identify any pertinent evidence not currently associated with the claims.  This was not necessary, however, because the Veteran volunteered his treatment history and symptoms since service.  Accordingly, the Veteran is not shown to be prejudiced on this basis.

Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).



Analysis

The Veteran contends in his April 2010 substantive appeal and elsewhere that he is entitled to a higher disability evaluation for his bilateral hearing loss.

Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4.  The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations.  38 U.S.C.A. § 1155.  The disability must be viewed in relation to its history.  38 C.F.R. § 4.1.  A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation.  38 C.F.R. § 4.7.  Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged ratings" is required.  Fenderson v. West 12 Vet. App. 119, 126 (1999).

The Veteran's hearing loss has been evaluated under 38 C.F.R. § 4.85, DC 6100.  This diagnostic code sets out the criteria for evaluating hearing impairment using pure tone threshold averages and speech discrimination scores.  Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  

Audiometric results are matched against Table VI to find the numeric designation, then the designations are matched with Table VII to find the percentage evaluation to be assigned for the hearing impairment.  To evaluate the degree of disability for service-connected hearing loss, the Rating Schedule establishes 11 auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness.  38 C.F.R. § 4.85.  When impaired hearing is service connected in one ear only, the non-service-connected ear will be assigned a designation of level I from Table VII.  38 C.F.R. § 4.85(f).  

The provisions of section 4.86 address exceptional patterns of hearing loss, which are defined as when each of the pure tone thresholds at 1000, 2000, 3000, and 4000 hertz (Hz) are 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz.  38 C.F.R. § 4.86.

In a June 2010 examination, pure tone thresholds, in decibels, were as follows:

June 2010

HERTZ



1000
2000
3000
4000
RIGHT
105+
105+
105+
105+
LEFT
20
35
35
35

The average decibel loss was 105 in the right ear and 31 in the left ear.  Speech discrimination was noted to be 0 percent in the right ear and 100 percent in the left ear.  The examiner diagnosed profound sensorineural hearing loss in the right ear, and hearing loss not considered disabling in the left ear.  The audiometry test results equate to Level XI hearing in the right ear using Table VI or Table VIA, and Level I in the left ear using Table VI.  38 C.F.R. §§ 4.85, 4.86.  Applying the percentage ratings for hearing impairment found in Table VII, Level XI hearing in the right ear and Level I hearing in the left ear does not result in a rating in excess of the current 10 percent.

In an August 2013 examination, pure tone thresholds, in decibels, were as follows:

Aug. 2013

HERTZ



1000
2000
3000
4000
RIGHT
105+
105+
105+
105+
LEFT
20
35
30
35

The average decibel loss was 105 in the right ear and 30 in the left ear.  Speech discrimination was noted to be untestable in the right ear and 100 percent in the left ear.  The examiner diagnosed sensorineural hearing loss bilaterally.  The examiner found that the functional effects of the Veteran's hearing loss include difficulty hearing conversation at a distance, difficulty understanding speech in noisy settings, misunderstanding verbal instructions, difficulty hearing television or radio at a normal volume, difficulty hearing conversation over the phone, difficulty hearing warning signals, embarrassment when asking others to repeat what they have said, social isolation, and difficulty hearing conversation if the speaker is not facing him.  The audiometry test results equate to Level XI hearing in the right ear using Table VI or Table VIA, and Level I in the left ear using Table VI.  38 C.F.R. §§ 4.85, 4.86.  Applying the percentage ratings for hearing impairment found in Table VII, Level XI hearing in the right ear and Level I hearing in the left ear does not result in a rating in excess of the current 10 percent.

In evaluating the Veteran's claim for a higher initial rating, the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for bilateral hearing loss.  To the extent that his hearing is impaired, his decreased hearing acuity is compensated by the schedular criteria; under the Rating Schedule a higher schedular rating can be awarded only when loss of hearing has reached a specified measurable level.  Therefore, the preponderance of the evidence is against the claim, and entitlement to a rating greater than 10 percent is not warranted.

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

Here, the applicable rating criteria adequately contemplate the manifestations of the Veteran's bilateral hearing loss, which include difficulty hearing.  In reaching this determination, the Board is cognizant of the Veteran's statements regarding the effects of his hearing loss, including his October 2013 statement that:

If someone calls my name, I will not know if that person is at my right, left, above or below me.  If a rattlesnake in the woods rattles his tail, the only thing to do is hold my position and wait until it bites me or leaves the area.  One reason [is] I was not able to hear it.  I will not know which way to run.  If [an] emergency vehicle approaches with its siren on, I will not know where it's coming from, unless I see it.

The Board finds that the consequences of reduced hearing that the Veteran has cited are neither exceptional nor usual; to the contrary, they are illustrative of a disability profile of someone with the Veteran's level of hearing impairment, and are the reason why he is compensated at the 10 percent level.  The Board is certainly sympathetic to the Veteran's hearing difficulty, and is confident that the Veteran's foreknowledge of the hypothetical consequences which he describes, in combination with his VA medical care for his service-connected hearing loss and his VA disability compensation, will permit him to take prudent steps to avoid harmful outcomes from such situations.  In summary, because the applicable rating criteria adequately contemplate the manifestations of the Veteran's bilateral hearing loss, and because there is no evidence in this case of other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization, the Board finds that the rating criteria are adequate to evaluate the bilateral hearing loss, and referral for consideration of an extraschedular rating is not warranted.

Finally, the Court has held that a total disability rating based on individual unemployability (TDIU) is a part of a claim for increased rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a TDIU.  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  The Veteran has not submitted evidence of unemployability due to his bilateral hearing loss, and his bilateral hearing loss symptoms are not of such severity as to prevent him from being able to secure or follow a substantially gainful occupation.  Moreover, the August 2013 VA examiner found that the Veteran's service-connected hearing loss and tinnitus do not render him unable to secure and maintain substantially gainful employment, and would not be a barrier to a wide range of employment settings.  Thus, TDIU is not raised by the record.


ORDER

An initial evaluation in excess of 10 percent for bilateral hearing loss is denied.




____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs