Citation Nr: 1335331	
Decision Date: 11/04/13    Archive Date: 11/13/13

DOCKET NO.  09-14 970	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to an initial compensable rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

L. McCurdy, Associate Counsel



INTRODUCTION

The Veteran served on active duty from January 1943 to November 1945.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, that assigned a noncompensable rating for bilateral hearing loss, after granting service connection for the same.  The Veteran appealed the assigned rating.

The issue of service connection for tinnitus was initially on appeal.  However, by a rating action dated in September 2010, service connection for tinnitus was granted.  The issue is no longer the subject of appellate review.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The Veteran has Level III hearing loss in his right and left ears. 


CONCLUSION OF LAW

The criteria are not met for an initial compensable rating for the Veteran's bilateral hearing loss.  38 U.S.C.A. § 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, 4.87, Diagnostic Code 6100 (2013).



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REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

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 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).

Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability).  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.

With respect to this claim, the Board notes that the initial rating issue is a downstream issue from the rating decision dated in September 2008 which initially established service connection for this disability, assigned the 0 percent initial rating being contested, and its effective date.  The United States Court of Appeals for Veterans Claims (Court) held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006), that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  

The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim.  The RO has obtained all identified and available treatment records for the Veteran, as well as his service records.  It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims folder, and that neither the Veteran nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal.

The Veteran was also provided with VA audiological examinations in June 2008 and July 2009 relating to his bilateral hearing loss.  The Board finds the above VA examination reports to be a thorough and adequate basis upon which to decide the Veteran's claim.  In each instance, the VA examiners personally interviewed and examined the Veteran, to include audiological testing, elicited a history from him, and provided the information necessary to evaluate his service-connected bilateral hearing loss under the applicable rating criteria.  Therefore, the available records and medical evidence have been obtained in order to make adequate determinations as to these claims.

The Board notes that the Veteran's last VA examination is now four years old.  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted.  VAOPGCPREC 11-95.  Consideration has been given to a December 2008 statement made by the Veteran that his hearing loss "is greater now (Dec. 15, 08) than it was at the time the VA doctor administered the test" in June 2008.  Subsequently, the VA scheduled him for another audiological examination in July 2009, so as to comply with Snuffer v. Gober, 10 Vet. App. 400 (1997).  Since that exam, the Veteran has made no statement regarding a worsening of his disability.  Moreover, and of equal import, there is no objective evidence indicating that there has been a material change in the severity of his hearing loss disability since the VA examination in July 2009.

Therefore, the available records and medical evidence have been obtained in order to make an adequate determination as to this claim.  The Board finds that VA's duty to assist has been met.  38 C.F.R. § 3.159(c).  No further notice or assistance to the Veteran is required to fulfill VA's duties to notify and 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, supra.

Factual Background and Analysis

All of the evidence in the Veteran's claims file has been reviewed.  Although the Board has an obligation to provide reasons and bases supporting this decision, it is not required to discuss, in detail, the extensive evidence of record.  Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that, while the Board must review the entire record, it does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  The Board will, therefore, summarize the relevant evidence where appropriate. The analysis in the following decision will focus specifically on what the evidence shows, or fails to show, with regard to the initial increased rating claim adjudicated in this decision.

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities.  The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155 ; 38 C.F.R. § 4.1, 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 for that rating.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

Where the issue involves the assignment of an initial rating for a disability following the initial award of service connection for that disability, as is the case here, the entire history of the disability must be considered and, if appropriate, staged ratings may be applied.  Fenderson v. West, 12 Vet. App. 119 (1999).
The Veteran contends he should be entitled to an initial compensable rating for his service-connected bilateral hearing loss, which has been rated by the RO under the provisions of Diagnostic Code (DC) 6100.

The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (at Levels 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.

VA rating criteria for evaluating hearing loss disability provide ratings from 0 (noncompensable) to 100 percent, based on the results of controlled speech discrimination tests together with the results of pure tone audiometry tests.  38 C.F.R. §§ 4.85, 4.86, DC 6100.  "Pure tone threshold average," as used in Table VI, is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  Average pure tone decibel loss is located on Table VI along a horizontal axis, and percent of speech discrimination is located along a vertical axis.  These axes intersect to determine the Roman numeral designation for hearing impairment in each ear.  The results are then matched between the "better" ear and the "poorer" ear on Table VII to produce a disability rating under DC 6100.

When the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral.  38 C.F.R. § 4.86(a) (2013).  Additionally, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral.  Thereafter, that numeral will be elevated to the next higher numeral.  38 C.F.R. § 4.86(b).

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 pure tone audiometry test.  Examinations are conducted without hearing aids.  38 C.F.R. § 4.85(a).

In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  Martinak, 21 Vet. App. at 455.  The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  Id.

The most reliable and probative evidence of record consists of the VA audiological test results of July 2009 and June 2008.  In that regard, the VA audiological examination in July 2009 revealed pure tone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hertz (Hz) as follows: 35, 50, 80, and 95, for an average of 65, and pure tone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows 35, 50, 80, and 85, for an average of 63.  The speech recognition score, using the Maryland CNC Test, was 88 in the right ear and 84 in the left ear.

Evaluating the VA audiological test results cited above, the Board finds that when the pure tone threshold averages and the speech recognition scores for the right ear from the VA examination in July 2009 are applied to Table VI, the numeric designation of hearing impairment is level III.  When the pure tone threshold averages and speech recognition scores for the left ear from the VA examination in July 2009 are applied to Table VI, the numeric designation of impairment is level III.  When these numeric designations for the right and left ears from the VA examination are applied to Table VII (Percentage Evaluation for Hearing Impairment-Diagnostic Code 6100), the percentage of disability for hearing impairment is 0 percent, and a compensable rating is therefore not warranted.  See 38 C.F.R. § 4.85, DC 6100.  In addition, the Board notes that the VA examiner in July 2009 discussed the functional effects caused by the Veteran's hearing disability in his report, including noting that the Veteran has "difficulty in general conversation [and] on the phone" and "asks others to repeat."  See Martinak v. Nicholson, supra.

The June 2008 examination results yield the same conclusion.  That audiological examination revealed pure tone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows: 20, 40, 70, and 75, for an average of 51, and pure tone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows 15, 35, 80, and 70, for an average of 50.  The speech recognition score, using the Maryland CNC Test, was 84 in the right ear and 80 in the left ear.

Evaluating the VA audiological test results cited above, the Board finds that when the pure tone threshold averages and the speech recognition scores for the right ear from the VA examination in June 2008 are applied to Table VI, the numeric designation of hearing impairment is level II.  When the pure tone threshold averages and speech recognition scores for the left ear from the VA examination in June 2008 are applied to Table VI, the numeric designation of impairment is level IV.  When these numeric designations for the right and left ears from the VA examination are applied to Table VII, the percentage of disability for hearing impairment is 0 percent, and a compensable rating is not warranted .  

The provisions of 38 C.F.R. § 4.86 which address exceptional patterns of hearing loss are not applicable.  There is no showing that Veteran had an exceptional pattern of hearing loss at any time.

Consideration has been given to the report of a March 2008 audiological examination conducted by Whisper Hearing Center.  The Board first notes that it can interpret graphical data.  See Kelly v. Brown, 7 Vet. App. 471 (1995).  That audiological examination revealed pure tone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows: 35, 45, 60, and 75, for an average of 54, and pure tone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows 30, 50, 70, and 75, for an average of 56.  The Veteran's speech discrimination results were a 100 percent in the right ear and 84 percent in the left ear.  It is unclear as to whether these results were under the Maryland CNC test or not.  See 38 C.F.R. § 4.85(a).  However, even if the Board were to assume that the test were under the Maryland CNC testing standards, the scores would not be beneficial to the Veteran when compared to the scores in the VA examinations speech recognition results.  Therefore, the Board will disregard these results and find any error by not analyzing these scores as not prejudicial because a request for clarification would not bear greatly on the probative value of the private examiner's opinion.  See Savage v. Shinseki, 24 Vet. App. 259 (2011).

The Veteran's statements regarding the effects of his hearing loss and his report that he has "significant hearing loss" that began while he was in service has been considered as well.  He is competent and credible in this regard.  However, as noted above, the evaluation of hearing loss is reached by a mechanical application of the rating schedule, to the numeric designations assigned, after audiometric evaluations are rendered.  See Lendenmann v. Principi, supra.  The requirements of 38 C.F.R. § 4.85 set out the percentage ratings for exact numerical levels of impairment required for a compensable evaluation of hearing loss, which requires specific testing.  In reviewing the record, the Board finds that the Veteran's degree of bilateral hearing loss does not meet the standards for a compensable evaluation during either the June 2008 or the July 2009 VA examinations.  Thus, there is no basis for assignment of a compensable rating for bilateral hearing loss at any point since the grant of service connection.  Fenderson v. West, supra.  The preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for a compensable rating for bilateral hearing loss must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

The Board also finds that the Veteran's hearing loss disability does not warrant referral for extraschedular consideration.  In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular rating is made.  38 C.F.R. § 3.321(b)(1) (2013).  There is a three-step analysis for determining whether an extraschedular rating is appropriate.  Thun v. Peake, 22 Vet. App. 111 (2008).  First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule.  Id.  If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as governing norms.  Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization).  If the factors of step two are present, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating.  Id.

There has been no showing that the Veteran's disability picture for his bilateral hearing loss could not be contemplated adequately by the applicable schedular rating criteria discussed above.  The criteria provide for higher ratings, but as has been explained thoroughly herein, the currently assigned rating adequately describes the severity of the Veteran's symptoms for this disability during the period of appeal.  Given that the applicable schedular rating criteria are adequate, the Board need not consider whether the Veteran's bilateral hearing loss disability picture includes such exceptional factors as periods of hospitalization and interference with employment.  Referral for consideration of the assignment of a disability rating on an extraschedular basis is not warranted.  See Thun, 22 Vet. App. at 111.

Analysis of this appeal has included deliberation of the provisions set forth in Martinak.  The Court reasoned that, "unlike the rating schedule for hearing loss, § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extra[-]schedular rating is warranted.  The Secretary's policy [requiring VA audiologists to describe the effect of a hearing disability on a Veteran's occupational functioning and daily activities] facilitates such determinations by requiring VA audiologists to provide information in anticipation of its possible application."  Id.

As noted above, the July 2009 VA examiner acknowledged the Veteran's complaints that he has difficulty understanding general conversations, conversations over the phone, and his wife's voice.  The examiner noted that there were no significant effects on the Veteran's occupation or daily activities.  The Veteran reported that he worked for NASA as head of the training department for twenty-seven years but that he was not currently employed.  The Veteran did not claim that his hearing disability has at any time interfered with his employment.  Rather, in an earlier February 2009 statement, the Veteran made no indication that his hearing loss had been a factor in his retirement and indicated instead that his hearing loss has worsened since that time.

Similarly, the June 2008 examiner noted that the Veteran's hearing loss interfered with hearing his wife's voice and hearing the TV clearly.  The Veteran did not complain that the hearing loss was interfering with employment or had done so. 

Finally, although the Veteran has submitted evidence of a medical disability and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable.  Therefore, the question of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities has not been raised.  See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).


ORDER

An initial compensable rating for bilateral hearing loss is denied.



____________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs