Citation Nr: 1336176	
Decision Date: 11/06/13    Archive Date: 11/13/13

DOCKET NO.  09-50 434	)	DATE
	)
	)

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


THE ISSUES

Entitlement to a compensable rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

L. Zobrist, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1970 to September 1972.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA).  In October 2012, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge.  This matter was previously before the Board in June 2013, when it was remanded for additional development.  


FINDING OF FACT

At no time during the appeal period is the Veteran's hearing acuity shown to have been worse than Level I in the right ear or Level II in the left ear.


CONCLUSION OF LAW

The criteria for a compensable disability rating for bilateral hearing loss disability have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, Part 4, 4.85, 4.86, Diagnostic Code 6100 (2013). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  

As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  An October 2009 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an increased rating, while an August 2013 supplemental SOC readjudicated the matter after further development was completed on remand.  38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006).  Notably, a September 2007 letter also provided him with general disability rating and effective date criteria.  The Veteran has had ample opportunity to respond/supplement the record.  He has not alleged that notice in this case was less than adequate.  See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) ("where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error).

The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured.  The RO arranged for VA examinations in January 2008 and July 2013.  These examinations are adequate for rating purposes as the examiners obtained a reported history from the Veteran, conducted thorough examinations, and noted the functional loss due to the hearing loss disability.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes).  Both examinations included audiometric studies.  Therefore, the Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, that no further development of the evidentiary record is necessary, and that VA's duty to assist is met.  See generally 38 C.F.R. § 3.159(c)(4).  Accordingly, the Board will address the merits of the claim. 

Legal Criteria, Factual Background, and Analysis

The Board has reviewed all the evidence in the Veteran's claims file, and in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to the matter on appeal.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that each item of evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis 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 Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).

Ratings for hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denotes essentially normal acuity and Level XI denotes profound deafness.  The assignment of the appropriate numeric level is based on the results of a controlled speech discrimination test (Maryland CNC test) in combination with the claimant's average puretone thresholds.  The average threshold is obtained from puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz.  38 C.F.R. § 4.85.

Rating specialists use either Table VI or VIA of 38 C.F.R. § 4.85 to determine the correct Roman numeral designation.  Table VIA is employed when the use of speech discrimination tests is inappropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (as defined in 38 C.F.R. § 4.86).  

Where (as here) the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings."  See Fenderson v. West, 12 Vet. App. 119 (1999).  As the current noncompensable rating assigned for the Veteran's bilateral hearing loss encompasses the greatest level of hearing impairment shown at any time during the appeal period, "staged ratings" are not warranted.

The Veteran's claim seeking service connection for bilateral hearing loss was received in August 2007.  He has undergone two audiological evaluations suitable for rating purposes since the filing of the claim.  On January 2008 VA audiological evaluation, audiometry revealed that puretone thresholds, in decibels, were:




HERTZ



1000
2000
3000
4000
Average
RIGHT
30
35
60
60
46
LEFT
30
45
70
65
53

Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear.  The examiner concluded that the Veteran had mild sloping to moderately severe sensorineural hearing loss in the right ear and mild sloping to severe sensorineural hearing loss in the left ear.  The examiner opined that the hearing loss was at least as likely as not related to noise exposure while in military service.  The examiner also noted that the Veteran "reported difficulty hearing conversations in background noise."  

Under Table VI, the right ear puretone threshold average of 46 decibels and speech discrimination of 100 percent constitute Level I hearing in that ear.  The left ear puretone threshold average of 53 decibels and speech discrimination of 100 percent constitute Level I hearing in that ear.  The audiometry does not reflect an exceptional pattern of hearing impairment in either ear.

Under Table VII, Level I hearing acuity found in the right ear, combined with Level I hearing acuity found in the left ear, warrants a noncompensable rating under Code 6100.

On July 2013 VA examination, audiometry found that puretone thresholds, in decibels, were:




HERTZ



1000
2000
3000
4000
Average
RIGHT
35
45
65
65
52
LEFT
35
50
70
65
55

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 88 percent in the left ear.  The VA examiner interviewed the Veteran regarding the effects of his hearing loss on occupational functioning and daily activities and noted the Veteran's complaints of difficulty hearing "people, TV, or over the telephone," and that, although his hearing aids are helpful, he "still [has] problems communicating even while wearing them."  Based on the examination and interview, the examiner opined that 

[w]hen aided, the functional impairment of his hearing loss is judged to be minimal/mild.  Even with the use of hearing aids, this veteran may encounter situations that may impair his ability to communicate effectively.  In instances where background noise is present, [the] veteran's understanding of speech may be impaired, and he may need visual cues obtained from a speaker's face.  Communication over radio, telephone, or intercom devices may be difficult for him.

Under Table VI, the right ear puretone threshold average of 52 decibels and speech discrimination of 96 percent constitute Level I hearing in that ear.  The left ear puretone threshold average of 55 decibels and speech discrimination of 88 percent constitutes Level II hearing in that ear.  The audiometry does not reflect an exceptional pattern of hearing impairment in either ear.  Under Table VII, Level I hearing acuity found in the right ear, combined with Level II hearing acuity found in the left ear, warrants a noncompensable rating under Code 6100.  

The Board finds that the January 2008 and July 2013 audiological examinations are adequate as the examiners elicited pertinent history, reviewed the record, conducted a thorough examination with explanation of all findings, and commented on the expected impact of the hearing loss on the Veteran's everyday and occupational functioning.  These examinations are probative medical evidence that, while the Veteran's hearing acuity may have worsened, a compensable rating is not yet warranted.

The record also contains evidence of private and VA clinic audiometric assessments.  On private assessment in October 2009, an audiologist recorded audiometric findings as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
35
35
60
60
47.5
LEFT
40
50
65
65
55

The private audiogram results were provided in graph form, and the Board has provided the numeric equivalents above.  See Kelly v. Brown, 7 Vet. App. 471, 474 (1995) (noting that interpreting results from an audiometric graph involves fact finding).  However, it appear that the speech recognition scores were obtained a word list other than the regulatory required Maryland CNC word list.  Accordingly, the October 2009 private audiology examination is inadequate for evaluating the severity of the Veteran's bilateral hearing loss disability for VA purposes.  38 C.F.R. §§ 4.85.  

In sum, the Board finds that, based on the probative medical evidence of record, a compensable rating for bilateral hearing loss on a schedular basis is not warranted.  The Board stresses that the manner of assigning a rating for hearing loss is a mechanical one as noted earlier.  If the Veteran's hearing acuity continues to decrease, he may be entitled to a compensable rating at some future time.  However, at the present time a compensable rating is not warranted under the applicable criteria.  

The Board further acknowledges the Veteran's complaints of difficulty discriminating sounds in certain situations.  The Board notes here that 38 C.F.R. § 4.86(b) appears to be designed to remedy this potential problem.  Under this regulatory provision, when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa, whichever results in the higher numeral, and that numeral will then be elevated to the next higher Roman numeral.  This provision compensates for a pattern of hearing impairment that is an extreme handicap in the presence of any environmental noise and appears to acknowledge that a speech discrimination test conducted in a quiet room with amplification of sound does not always reflect the extent of impairment experienced in the ordinary environment.  See 64 Fed. Reg. 25203 (May 11, 1999).  The results of the audiological tests do not meet the requirements for application of this regulation. 

The Board has also considered whether referral for extraschedular consideration is indicated.  The evidentiary record does not show any manifestations of, or functional impairment due to, the Veteran's bilateral hearing loss not encompassed by the criteria for the schedular rating assigned.  The functional loss noted on the January 2008 and July 2013 audiological examinations (difficulty hearing in certain occupational situations and with certain daily activities) is fully contemplated by the schedular criteria.  Therefore, the Board finds that referral for extraschedular consideration is not warranted.  See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008).  

There is no evidence (or allegation) that the Veteran's bilateral hearing loss renders him unemployable.  Hence, the matter of entitlement to a total disability rating based on individual unemployability is not raised by the record.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  

The Board finds that the preponderance of the evidence is against this claim; therefore, the appeal in the matter must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).



ORDER

A compensable rating for bilateral hearing loss is not warranted.  The appeal is denied.




______________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs