Citation Nr: 1336137	
Decision Date: 11/06/13    Archive Date: 11/13/13

DOCKET NO.  10-06 429	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an initial compensable rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


ATTORNEY FOR THE BOARD

Shamil Patel, Counsel



INTRODUCTION

The Veteran served on active duty from February 1976 to May 1978.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, granted service connection for bilateral hearing loss and assigned a noncompensable (0 percent) rating effective June 19, 2008.

The Veteran failed to report for an October 2012 hearing before the Board at the RO without showing good cause.  His request for a hearing is considered withdrawn.  38 C.F.R. § 20.702(d) (2013).

The matter was remanded by the Board in November 2012 for additional development, and now returns to the Board for further review.

A portion of the Veteran's records are contained in the Virtual VA system.  Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process.  The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claim for benefits.  Because the current appeal was processed as part of the Virtual VA system, any future consideration of this appellant's case should take into consideration the existence of this electronic record.


FINDING OF FACT

The medical evidence of record indicates that the Veteran manifested Level I hearing in the right ear and Level I hearing in the left ear throughout the appeal period.



CONCLUSION OF LAW

The criteria for 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, 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, Diagnostic Code 6100 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000

A.  Duty to Notify

Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 C.F.R. § 3.159 (2013).  Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).

Here, the Veteran is challenging the initial evaluation assigned following the grant of service connection.  In Dingess, the U.S. Court of Appeals for Veterans Claims (Court) held 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.   Id. at 490-91.  Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied.

Moreover, in accordance with 38 U.S.C.A. §§ 5103(a) and 7105(d), the RO properly issued a January 2010 statement of the case (SOC) which contained, in part, the pertinent criteria for establishing a higher rating.  See 38 U.S.C.A. § 7105(d)(1).  VA complied with the procedural statutory requirements of 38 U.S.C.A. §§ 5104(b) and 7105(d), as well as the regulatory requirements in 38 C.F.R. § 3.103(b).  See also Dingess.  The Veteran was allowed a meaningful opportunity to participate in the adjudication of the claim.  Even though the initial VCAA notice did not address a higher rating, subsequent documentation addressed this matter; there is no prejudice to the claimant.  See Overton v. Nicholson, 20 Vet. App. 427 (2006).

B.  Duty to Assist

This additional duty includes assistance in obtaining potentially relevant records, such as service treatment records and post-service VA and private medical evaluation and treatment records, as well as the provision of an examination - including for a medical opinion - when necessary to make a decision on the claim.

Here, the Veteran's service treatment records and VA treatment records have been associated with the claims file.  The Veteran has not identified any additional evidence that is pertinent to his claim but not part of the record.

The Veteran was also afforded VA examinations.  38 C.F.R. § 3.159(c)(4).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

The VA examinations obtained in this case are adequate as they are collectively predicated on a review of the claims file; contain a description of the history of the disabilities at issue; document and consider the relevant medical facts and principles; and record the relevant findings for rating the Veteran's bilateral hearing loss.  VA's duty to assist with respect to obtaining a VA examination or opinion for the issues on appeal has been met.  38 C.F.R. § 3.159(c)(4).

VA has provided the Veteran with the opportunity to submit evidence and argument in support of his claims.  The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159.

Increased Rating

A.  Applicable Law

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities.  The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013).  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2013).  Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3 (2013).

Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period.

VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating."  See Fenderson v. West, 12 Vet. App 119 (1999).  The Court has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2008).

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21.  Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria.  See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment).

In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Evaluations of hearing loss range from noncompensable 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 in the frequencies 1000, 2000, 3000 and 4000-Hertz.  The rating schedule establishes 11 auditory acuity Levels, designated from Level I for essentially normal hearing acuity through Level XI for profound deafness.  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 puretone audiometric test.  Examinations will be conducted without the use of hearing aids.  See 38 C.F.R. § 4.85(a).  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 upon 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 1000, 2000, 3000 and 4000-Hertz, divided by four.  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, also referred to as Diagnostic Code 6100) is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better 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 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.  See 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 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.  See 38 C.F.R. § 4.86(b).  Each ear will be evaluated separately.

B.  Evidence and Analysis

During the Veteran's November 2008 VA examination, he did not complain of any functional effects from hearing loss.  Puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
30
55
55
LEFT
15
15
40
55
60

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear.  Puretone threshold average for the right ear was 39 decibels [15+30+55+55=155, 155/4=38.75~39].  Utilizing Table VI for the right ear results in a hearing level of I.  Puretone threshold average for the left ear was 43 decibels [15+40+55+60=170, 170/4=42.5~43].  Utilizing Table VI for the left ear results in a hearing level of I.

Another VA examination was conducted in December 2012.  Puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
45
70
75
LEFT
25
20
45
60
65

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 94 percent in the left ear.  Puretone threshold average for the right ear was 53 decibels [20+45+70+75=210, 210/4=52.5~53].  Utilizing Table VI for the right ear results in a hearing level of I.  Puretone threshold average for the left ear was 43 decibels [20+45+60+65=190, 190/4=47.5~48].  Utilizing Table VI for the left ear results in a hearing level of I.  The VA examiner noted that hearing loss significantly affected occupational duties.

Notably, VA treatment records associated with the claims file show the Veteran received additional treatment for his bilateral hearing loss.  However, these records do not contain speech recognition scores or audiometric findings for specific frequencies, and are therefore not suitable in evaluating the Veteran's service-connected hearing loss under the criteria in the rating schedule.

Based on the evidence of record, the Board finds that an initial compensable rating is not warranted for the Veteran's bilateral hearing loss.  During the period on appeal, hearing levels were I in the right ear and I in the left ear.  A comparison between these findings and 38 C.F.R. § 4.85, Table VII indicates that the assigned 0 percent disability rating is appropriate.  While the Board has considered the examiner's statement regarding significant occupational effects resulting from the Veteran's hearing loss, that evidence alone does not warrant a compensable rating in light of the objective medical findings.  Moreover, while puretone thresholds noted during the December 2012 examination were slightly higher than those noted in November 2008, hearing levels as measured by Table VI remained constant at level I, which is consistent with the Veteran's own statements in 2008 that he did not have any significant functional effects resulting from hearing loss.

C.  Extraschedular Consideration

In evaluating the Veteran's claims for higher ratings, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis.  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

As part of the evaluation for an extraschedular rating, the Board has considered the provisions of Mittleider v. West, 11 Vet. App. 181, 182 (1998), which holds that the benefit of the doubt applies to determinations of whether a symptom should be attributed to a service-connected condition.  The Board has attributed all potentially service-connected symptoms to the Veteran's service-connected conditions in considering if the Veteran is entitled to an extraschedular rating.

According to the regulation, an extraschedular disability rating is warranted based upon 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 that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1).  An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards.  See Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the claimant'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 rating.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's hearing loss with the established criteria found in the rating schedule for that disability shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology, as discussed above.  Hearing loss is rated primarily on objective puretone thresholds and speech recognition scores.  The Veteran has not demonstrated that his hearing disability results in symptomatology or impairment not contemplated by the rating schedule.



ORDER

Entitlement to an initial compensable rating for bilateral hearing loss is denied.



____________________________________________
KELLI A. KORDICH
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs