Citation Nr: 1335822	
Decision Date: 11/05/13    Archive Date: 11/13/13

DOCKET NO.  12-03 509	)	DATE
	)
	)

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


THE ISSUE

Entitlement to a compensable disability rating for bilateral hearing loss.  


ATTORNEY FOR THE BOARD

Tiffany Berry, Counsel 


INTRODUCTION

The Veteran had active service from June 1964 to January 1985. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision issued by the Regional Office (RO), in Muskogee, Oklahoma. 



FINDINGS OF FACT

1.  The results of the April 2011 VA audiological evaluation show the Veteran had Level II hearing loss in the right and left ears.

2.  A December 2011 private audiological evaluation show the Veteran had Level I hearing loss in the right ear and Level III hearing loss in the left ear.  


CONCLUSION OF LAW

The criteria for a compensable disability rating for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.85 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  Proper VCAA notice must inform the claimant of any information and 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)(1).  

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits.  

In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA.  Specifically, the RO sent the Veteran a letter in April 2011, advising him of the evidence and information necessary to substantiate his increased rating claim as well as his and VA's respective responsibilities in obtaining such evidence and information.  

Relevant to the duty to assist, the Veteran's service treatment records and post-service private treatment records have been obtained and considered.  The Veteran has not identified any additional, outstanding records that have not been requested or obtained.  

The Veteran was also afforded a VA examination in April 2011, in conjunction with the claim on appeal.  The Veteran has not alleged that this examination is inadequate for rating purposes.  Moreover, the Board finds that the examination is adequate in order to evaluate the Veteran's service-connected bilateral hearing loss disability as it includes an interview with the Veteran, a review of the record, and a full objective physical examination, addressing the relevant rating criteria.  Moreover, the Veteran has not alleged the bilateral hearing loss has worsened in severity since the April 2011 VA examination.  Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination).  Therefore, the Board finds that the examination of record is adequate to adjudicate the Veteran's increased rating claim and no further examination is necessary.  


II.  Increased Rating Claim

The Veteran's hearing loss is currently rated at 0 percent, effective from January 14, 2010.  The Veteran argues his hearing loss is more severe than this disability rating reflects.  

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are:  interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present.  See 38 C.F.R. §§ 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 

Although the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.  

Evaluations of bilateral hearing loss range from noncompensable (i.e., 0 percent) to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test (Maryland CNC) and the average hearing threshold, as measured by puretone audiometric tests at the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz.  The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through level XI for profound deafness.

Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination) is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns).  The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone average intersect.  38 C.F.R. § 4.85(b).  The puretone threshold average is the sum of the puretone thresholds at 1,000, 2,000, 3,000 and 4,000 Hertz, divided by 4.  This average is used in all cases to determine the Roman numeral designation for hearing impairment.  38 C.F.R. § 4.85(d).

Table VII (Percentage Evaluations for Hearing Impairment) is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poor hearing.  The percentage evaluation is located at the point where the rows and column intersect.  38 C.F.R. § 4.85(e).

VA regulations also provide that, in cases of exceptional hearing loss, when the puretone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral.  Each ear will be considered separately.  38 C.F.R. § 4.86(a).  

The provisions of 38 C.F.R. § 4.86(b) further provide that, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be considered separately.  However, as will be shown below, the audiometric findings do not reflect an exceptional pattern of hearing loss, and the provisions of 38 C.F.R. § 4.86 do not apply.

The Board has reviewed all the evidence in the Veteran's claims file and electronic VA file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The relevant evidence of record includes the report of the April 2011 VA audiological examination, and a private audiological evaluation, dated in December 2011.  

In April 2011, the Veteran was scheduled for a VA audiological examination to determine the severity of his bilateral hearing loss.  Based on the audiogram findings, his puretone thresholds, in decibels, were as follows:



HERTZ


1000
2000
3000
4000
RIGHT
30
35
55
60
LEFT
25
35
65
60

The average puretone threshold was 45 decibels in the right ear and 46 decibels in the left ear.  Speech recognition ability of 88 percent for the right ear and 84 percent for the left ear was indicated.  

Applying the results of this April 2011 VA audiogram to Table VI yields values of Level II hearing for the right ear and the left ear.  Applying these values to Table VII indicates his bilateral hearing loss at that time was noncompensable, i.e., 0 percent disabling.  

As for any functional effect of his hearing loss on activities of daily living, this examiner noted the Veteran's hearing loss does not affect either his occupation or daily activities.  Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007).  

Thereafter, the Veteran submitted the December 2011 private audiological evaluation.  His puretone thresholds, in decibels, were as follows:



HERTZ


1000
2000
3000
4000
RIGHT
25
20
55
60
LEFT
25
30
65
60

The average puretone threshold was 40 decibels in the right ear and 45 decibels in the left ear.  Speech recognition ability of 92 percent for the right ear and 76 percent for the left ear was noted.   

Applying the results of that December 2011 audiogram to Table VI yields values of Level I hearing for the right ear and Level III hearing for the left ear.  Applying these values to Table VII indicates his bilateral hearing loss at that time was again noncompensable.  

The Board acknowledges the Veteran's complaints regarding the functional impact of his hearing loss on his daily life, and his complaints that he has difficulty hearing.  However, the assignment of disability rating for hearing impairment is derived from a mechanical formula based on levels of pure tone threshold average and speech discrimination.  As such, the findings of his two audiograms indicating that he has never had higher than a 0 percent disability rating level are more probative than the lay contentions as to the extent of hearing loss.

The Board has also considered whether the Veteran's hearing loss presents an exceptional or unusual disability picture during the period in question as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted.  See 38 C.F.R. § 3.321(b)(1) (2013); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  While the Veteran reports some impairment due to his hearing loss, the rating schedule contemplates the average impairment in earning capacity as a result of service connected disability.  38 C.F.R. § 4.1.  Here, the rating criteria contemplate varying levels of hearing loss and reasonably describe the Veteran's disability level.  The rating criteria also provide for consideration of greater disability than currently shown by the evidence.  Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Consequently, referral for extra-schedular consideration is not warranted.

Finally, in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009), a Veteran's claim for an increased disability evaluation may require a determination as to whether the Veteran is entitled to a total disability rating based on individual unemployability.  In this case, the April 2011 VA examiner specifically determined the Veteran's hearing loss disability does not impact either his occupational or daily activities.  Therefore, the evidence does not suggest the Veteran is incapable of obtaining and maintaining substantially gainful employment due to hearing loss.  Accordingly, Rice considerations are inapplicable in this case.

In summary, the most probative evidence of record fails to demonstrate that a compensable rating is warranted for the Veteran's service-connected bilateral hearing loss. 

In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 


ORDER

Entitlement to a compensable disability rating for bilateral hearing loss is denied.  



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs