Citation Nr: 1335378	
Decision Date: 11/04/13    Archive Date: 11/13/13

DOCKET NO.  10-35 089	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to an initial compensable evaluation for hearing loss.


REPRESENTATION

Appellant represented by:	Oklahoma Department of Veterans Affairs


ATTORNEY FOR THE BOARD

Kalisse Anderson, Associate Counsel


INTRODUCTION

The Veteran had active military service from September 1969 to December 1980.  
This case comes before the Board of Veterans' Appeals (Board) on appeal of June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma.  


FINDING OF FACT

The Veteran's service-connected bilateral hearing loss is manifested by no more than Level III in the right ear and Level III in the left ear.  


CONCLUSION OF LAW

The criteria for a compensable evaluation for service-connected bilateral hearing loss are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.85, Diagnostic Code 6100 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Disability evaluations are determined by comparing a Veteran's present symptomatology with the criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the 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 the 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.  After careful consideration of the evidence, 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).  

Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the then current severity of the disorder.  Fenderson v. West, 12 Vet. App. 119 (1999).  In Fenderson, the Court also discussed the concept of "staging" ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  Fenderson , 12 Vet. App. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007).  

The Veteran's service-connected bilateral hearing loss has been evaluated as non-compensable throughout the appeal period under the provisions of Diagnostic Code 6100.  See 38 C.F.R. § 4.85 (2012).  The Board notes that the Veteran was awarded service connection for bilateral hearing loss on the basis that he is diagnosed with hearing loss in both ears as directly related to his active service.  

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 Lendenmann 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.  

When the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4000 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) (2012).  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).  

Turning to the record, at the February 2009 VA contract examination, pure tone thresholds, in decibels, were as follows: 

Hertz
1000
2000
3000
4000
Average
Right
50
50
60
75
59
Left
35
55
75
90
64

Speech audiometry revealed speech recognition ability of 84% in each ear.  The examiner noted that the effect of the condition on the Veteran's daily activity is significant and that the Veteran would benefit from the use of hearing aids.  Entering the average pure tone thresholds and speech recognition abilities into Table VI reveals the highest numeric designation of hearing impairment is III in both ears.  See 38 C.F.R. § 4.85.  Entering the category designations for each ear into Table VII results in a non-compensable evaluation under Diagnostic Code 6100, providing evidence against this claim.

A June 2010 VA contract examination reports pure tone thresholds, in decibels, recorded as follows: 

Hertz
1000
2000
3000
4000
Average
Right
55
50
60
70
59
Left
40
55
75
95
66

Speech audiometry revealed speech recognition ability of 92% in each ear.  The examiner noted that the effect of the condition on the Veteran's daily activity is difficulty hearing and understanding conversations.  Entering the average pure tone thresholds and speech recognition abilities into Table VI reveals the highest numeric designation of hearing impairment is II in both ears.  See 38 C.F.R. § 4.85.  Entering the category designations for each ear into Table VII results in a non-compensable evaluation under Diagnostic Code 6100, providing more evidence against this claim.  

A July 2012 VA contract examination reports pure tone thresholds, in decibels, recorded as follows:

Hertz
1000
2000
3000
4000
Average
Right
50
50
60
75
59
Left
50
60
80
100
73

Speech audiometry revealed speech recognition ability of 94% in the right ear and 88% in the left ear.  The examiner noted that the effect of the condition on the Veteran's daily activity is difficulty hearing and understanding conversations.  Entering the average pure tone thresholds and speech recognition abilities into Table VI reveals the highest numeric designation of hearing impairment is II in the right ear and III in the left ear.  See 38 C.F.R. § 4.85.  Entering the category designations for each ear into Table VII results in a non-compensable evaluation under Diagnostic Code 6100, providing additional evidence against this claim.  

The Board would like to note that the Veteran did undergo an additional audiometric test in November 2009 at the Dallas VA Medical Center.  However, because this test did not utilize the Maryland CNC test, it is not adequate for rating purposes.  See 38 C.F.R. § 4.85(a); see also November 2009 VA Treatment Records.  In any event, it is not in dispute with the above testing.     

There is no audiometric testing of record at any point during the appeal period that would indicate a compensable evaluation for bilateral hearing loss is warranted.  The Board acknowledges the Veteran's statements that his bilateral hearing loss is worse than a non-compensable 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 Veteran's impairment.  Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.85, Diagnostic Code 6100 with respect to determining the severity of his service-connected bilateral hearing loss disability.  

In sum, the Board finds that there is no audiological evidence of record to support a compensable evaluation for the Veteran's bilateral hearing loss disability at any point during the appeal period, providing highly probative evidence against this claim.  The preponderance of the evidence is against the Veteran's claim for a higher rating.  Consequently, the benefit of the doubt rule does not apply.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  

The rating criteria contemplate speech reception thresholds and the ability to hear spoken words with the Maryland CNC test.  The symptoms associated with the Veteran's bilateral hearing loss (i.e., difficulty understanding conversations) are contemplated by the rating criteria and the medical evidence fails to show anything unique or unusual about the Veteran's bilateral hearing loss that would render the schedular criteria inadequate.  The Veteran's main complaint is reduced hearing acuity, which is precisely what is contemplated in the rating assigned.  All of the examiners have noted the Veteran's complaints regarding the effect of his hearing loss on occupational function and on daily activities.  See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  Further, VA provided the Veteran with hearing aids as recommended by the February 2009 examiner (which hopefully assist the Veteran with this problem).  See November 2009 VA Treatment Records.  As the available schedular criteria for this service-connected disability are adequate, referral for consideration of an extraschedular rating is not warranted.  Primarily, there is no evidence of record to indicate that the functional effects of the Veteran's bilateral hearing loss are so severe as to render the schedular criteria inapplicable.  See Thun v. Peake, 22 Vet. App. 111 (2008).  

Entitlement to a total disability rating based upon individual unemployability (TDIU) is an element of all increased rating claims.  See Rice v. Shineski, 22 Vet. App. 447 (2009).  In this case, the record is negative for evidence that the Veteran is unemployable.  There is no evidence that he is in receipt of Social Security benefits and he is currently employed as a long distance truck driver.  There is no medical evidence that the Veteran's hearing loss disability has noticeably interfered with his employment, and the Veteran has not stated that he is unable to perform his duties due to his service-connected disability.  Therefore, remand or referral of a claim for TDIU is not necessary, as there is no evidence of unemployability due to his service-connected disability.  

Duties to Notify and Assist

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 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(a) (2012).  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 394, 473 (2006).  

This appeal arises from Veteran's disagreement with the initial evaluation following the grant of service connection for bilateral hearing loss.  Where service connection has been granted the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required, because the purpose that notice intend to serve has been fulfilled.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006).  The appellant bears the burden of demonstrating prejudice from defective notice with respect to downstream elements.  See Goodwin v. Peake, 22 Vet. App. 128 (2008).  

In any event, VA's duty to notify has been satisfied through February 2009 and January 2010 letters sent to the Veteran that fully addressed all notice elements.  These letters informed the Veteran of what evidence was required to substantiate his claim, and of the Veteran's and VA's respective duties for obtaining evidence.  The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond.  

The Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review by sending out additional VCAA notice letters.  

VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012).  

Service treatment records have been associated with the claims file.  All post-service treatment records and reports identified by the Veteran have also been obtained.  The Veteran has not identified any additional records that should be obtained prior to a Board decision.  Therefore, VA's duty to assist the Veteran in obtaining records has been satisfied.  See 38 C.F.R. § 3.159(c)(4).  The Veteran was afforded three VA examinations in February 2009, June 2010 and July 2012.  See 38 U.S.C.A. § 5103A; see also 38 C.F.R. § 3.159(c)(4); Wells v. Principi, 327 F.3d 1381 (Fed. Cir. 2003).  The Board finds the VA examinations adequate for the purposes of the present claim, as they involved a review of the Veteran's pertinent medical history as well as an audiological examination and they provide a discussion of the relevant symptomatology related to the disability on appeal.  See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  

In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the fullest extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist.  38 U.S.C.A. §§ 5103 and 5103A; see 38 C.F.R. § 3.159. 

ORDER

An initial compensable evaluation for bilateral hearing loss is denied.  


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs