Citation Nr: 1335805	
Decision Date: 11/05/13    Archive Date: 11/13/13

DOCKET NO.  11-32 091	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to an initial compensable disability evaluation for bilateral hearing loss.  


REPRESENTATION

Appellant represented by:	Missouri Veterans Commission


ATTORNEY FOR THE BOARD

J. Moses, Associate Counsel







INTRODUCTION

The Veteran, who is the appellant, had active service from August 1972 to July 1974.  

This matter came before the Board of Veterans' Appeals (Board) on appeal from a 
June 2010 rating decision by the St. Louis, Missouri, Department of Veterans Affairs (VA) Regional Office (RO), which denied both service connection for tinnitus and an increased disability evaluation for the Veteran's right ear high frequency hearing loss.  In October 2010, the RO granted service connection for tinnitus; tacitly established service connection for left ear hearing loss; and recharacterized the Veteran's hearing loss disability as high frequency hearing loss evaluated as noncompensable.  The Statement of the Case (SOC) addressed the issue of evaluation of bilateral hearing loss.  The Board has reviewed the physical claims file and both the "Virtual VA" and Veteran's Benefits Management System (VBMS) files so as to insure a total review of the evidence.  


FINDING OF FACT

Bilateral hearing loss has been shown to be manifested by no more than bilateral Level I auditory acuity and no occupational impairment.


CONCLUSION OF LAW

The criteria for an initial compensable evaluation for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012);  38 C.F.R §§ 3.159, 3.321, 4.85, 4.86, Diagnostic Code 6100 (2013).






REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and to Assist

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that a Veterans Claims Assistance Act of 2000 (VCAA) notice, as required by 38 U.S.C.A. § 5103(a), must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that the VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  The notice must be provided to a claimant before the initial unfavorable RO decision on a claim for VA benefits.  The Board observes that VA issued a March 2010 VCAA notice letter which informed the Veteran of the evidence generally needed to substantiate his claim; what actions he needed to undertake; how VA would assist him in developing his claim; and how VA assigns a disability evaluation.  The March 2010 VCAA notice was issued to the Veteran prior to the June 2010 rating decision from which the instant appeal arises.  

VA has secured or attempted to secure all relevant documentation to the extent possible.  The Veteran was afforded VA audiological examinations in August 2010 and October 2011 for compensation purposes.  The examination reports are of record.  To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The examination reports noted that the claims folder was reviewed and that all relevant evaluation and tests were performed.  The examiners did not address the functional effects caused by the Veteran's hearing impairment.  Martinak v. Nicholson, 21 Vet. App. 447, 455-56.  In Martinak, the Court noted that even if the audiologist's description of the functional effects of the Veteran's hearing impairment was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  The Veteran has not alleged any occupational or other specific functional impairment associated with his bilateral hearing loss.  For these reasons, the Board finds that the examination report is adequate. 

All identified and available relevant VA and private documentation has been secured to the extent possible.  All relevant facts have been developed to the extent possible.  There remains no issue as to the substantial completeness of the Veteran's claim.  38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.159, 3.326(a).  Any duty imposed on VA, including the duty to assist and to provide notification, has been met as set forth above.  

Evaluation 

In August 1974, the RO established service connection for right ear high frequency hearing loss.  In October 2010, the RO tacitly established service connection for left ear hearing loss  as reflected by the consideration of the audiometric findings regarding both ears and the RO recharacterized the Veteran's hearing loss disability as high frequency hearing loss evaluated as noncompensable.  In addition, the SOC addressed the issue of the evaluation of bilateral hearing loss, evaluated as 0 percent disabling.  

Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Disability evaluations for bilateral defective hearing range from noncompensable to 100 percent based on the degree of organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by a pure tone audiometry test in the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second.  Specifically, "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."  The rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal auditory acuity to Level XI for profound deafness.  Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. The evaluations derived from the rating schedule are intended to make allowance for improvement by hearing aids.  38 C.F.R. § 4.85, 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 Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  

Exceptional patterns of hearing impairment are to be evaluated in accordance with the provisions of 38 C.F.R. § 4.86.  That regulation states that: 

(a)  When the pure tone 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.  

(b)  When the pure tone 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.  


At the August 2010 VA audiological evaluation, the Veteran exhibited pure tone thresholds, in decibels, as follows:




HERTZ




1000
2000
3000
4000
RIGHT

20
65
70
65
LEFT

25
35
60
60

Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 94 percent in the left ear.  The Veteran was diagnosed with moderately severe bilateral sensorineural hearing loss.  The examiner did not specifically note any functional impairment associated with the Veteran's bilateral hearing loss.  

At the October 2011 VA audiological evaluation, the Veteran exhibited pure tone thresholds, in decibels, as follows:




HERTZ




1000
2000
3000
4000
RIGHT

25
65
70
65
LEFT

25
35
65
60

Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 100 percent in the left ear.  The Veteran was diagnosed with moderately severe bilateral high frequency hearing loss.  The examiner did not note the functional effects of the Veteran's hearing impairment.      

A November 2011 audiological evaluation from J. Teymouri, Au.D. relates that the Veteran exhibited pure tone thresholds, in decibels, as follows: 




HERTZ




1000
2000
3000
4000
RIGHT

15
65
65
65
LEFT

10
45
65
60

Dr. Teymouri noted that the W-22 word list was used for speech recognition testing.  The provisions of 38 C.F.R. § 4.85(a) direct that an examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC).  Therefore, the Board finds that the November 2011 audiological evaluation is not competent for VA rating purposes.  

The Veteran's bilateral hearing loss has not been shown to be manifested by an exceptional pattern of hearing impairment.  38 C.F.R. § 4.86.  The Board has reviewed the probative evidence of record including the Veteran's written statements on appeal.  The competent audiometric evidence shows that the Veteran exhibited bilateral Level I hearing loss on multiple evaluations, which warrants a 0 percent disability rating under Table VII of Diagnostic Code 6100.  38 C.F.R.  §4.85.  The audiometric findings do not provide a basis for a higher (compensable) rating for the Veteran's bilateral hearing loss under Table VII.  While the November 2011 private audiological evaluation is not competent for VA rating purposes, the audiometric findings therein are consistent with the other competent audiometric findings.    

The Veteran asserts that a compensable evaluation is warranted for his bilateral hearing loss as it is "severe" in nature.  While acknowledging that the Veteran's bilateral hearing loss is productive of auditory impairment, the clinical record reflects no more than bilateral Level I auditory acuity such hearing loss warrants assignment of a noncompensable evaluation.  38 C.F.R. § 4.85, Diagnostic Code 6100.  A compensable schedular evaluation is not warranted for the Veteran's bilateral hearing loss at any point during the relevant time period.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  

Extra-Schedular Consideration

Evaluations shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience.  To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.  The governing norm in these exceptional cases is:  A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1).  

The Board has considered whether the Veteran's claim should be referred for consideration of his entitlement to an extra-schedular evaluation for his service-connected bilateral hearing loss under 38 C.F.R. § 3.321(b)(1).  The Court has clarified that there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular evaluation.  Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular evaluation.  Thun v. Peake, 22 Vet App 111 (2008).  

With respect to the first prong of Thun, the evidence in the instant appeal does not establish such an exceptional disability picture as to render the schedular evaluation inadequate.  Disability evaluations for bilateral hearing loss range from noncompensable to 100 percent based on the degree of hearing loss impairment as measured by the results of controlled speech discrimination tests together with the average hearing threshold levels at frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second.  38 C.F.R. § 4.85.  Diagnostic Code 6100 provides a table (Table VII) to determine the percentage evaluation for hearing impairment by combining the Roman numeral designations derived from Table VI for hearing impairment of each ear.  The Veteran exhibited no more than Level I hearing loss, designated as noncompensable.  It has not been shown that the severity of his hearing loss presents an exceptional disability picture not otherwise contemplated by the available schedular criteria.  Indeed, the Veteran has made no statements as to how his hearing loss affects his occupational functioning and daily activities.  The record does include the November 2011 private audiological report during which the Veteran reported that his wife had concerns about his hearing status.  The Veteran indicated that he did not deny subjective hearing loss but felt that he does well in almost all situations and is not interested in amplification.  The evidence does not show that his disability is unusual or exceptional.  The Board recognizes the Veteran's hearing impairment, but finds that the rating criteria reasonably describes his disability level, which centers on his hearing impairment.  Therefore, the Board has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted.  

Total Disability Based on Individual Unemployment 

The Court has held that entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) is raised when a Veteran:   (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability.  See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009).  In his November 2010 NOD, the Veteran indicated that he was employed as a "Vice President, Financial Advisor" at an investment company.  He has not otherwise indicated that he is unemployed.  As there is no evidence of unemployability, the question of entitlement to a TDIU has not been raised by the Veteran or the record.


ORDER

An initial compensable evaluation for bilateral hearing loss is denied.



____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs