Citation Nr: 1336333	
Decision Date: 11/07/13    Archive Date: 11/13/13

DOCKET NO.  09-41 067	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
North Little Rock, Arkansas


THE ISSUE

Entitlement to a compensable evaluation for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Suzie S. Gaston, Counsel

INTRODUCTION

The Veteran served on active duty from February 1962 to August 1965.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision, by the North Little Rock, Arkansas RO, which, in part, denied the Veteran's claim of entitlement to a compensable evaluation for bilateral hearing loss.  

On September 22, 2010, the Veteran appeared at the RO and testified at a videoconference hearing before the undersigned Veterans Law Judge sitting in Washington, D.C.  


FINDINGS OF FACT

1.  In December 2004, audiometric testing revealed an average 46.25 decibel loss, with a speech recognition score of 92 percent, in the right ear (level I); and an average 47.5 decibel loss, with a speech recognition score of 88 percent, in the left ear (level II).  

2.  The most recent VA Audiological examination, conducted in January 2012, revealed pure tone thresholds in four frequencies from 1,000 to 4,000 Hertz that averaged 58 decibels in the right ear, with a speech recognition of 88 percent, corresponding to Level III hearing.  Pure tone thresholds averaged 60 decibels in the left ear, with speech recognition of 88 percent, corresponding to Level III hearing.  


CONCLUSION OF LAW

The criteria for a compensable rating for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2013).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.326(a) (2013).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC).  Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).  

In this case, VA satisfied its duty to notify by means of letters dated in November 2004 and January 2005 from the RO to the Veteran which were issued prior to the RO decision in March 2005.  Additional letters were issued in April 2011 and May 2011.  Those letters informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence.  

The Board finds that the content of the above-noted letter provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify.  

Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence.  It also appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this appeal.  It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice.  

The Board is unaware of any outstanding evidence or information that has not already been requested.  The Veteran has been afforded examinations on the issue decided herein.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  Significantly, the Veteran was afforded examinations in June 2011 and January 2012.  The reports reflect that the examiners solicited symptoms from the Veteran, examined the Veteran, and provided findings necessary to apply the rating criteria.  Therefore, these examinations are adequate.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  

II.  Background

By a rating action in January 1999, the RO granted service connection for bilateral hearing loss, evaluated as noncompensably disabling, effective October 19, 1998.  

The Veteran's claim for a compensable evaluation for bilateral hearing (VA Form 21-526) was received in November 2004.  In conjunction with the claim, the Veteran was afforded a VA examination in December 2004.  It was noted that the Veteran's hearing loss has existed for 34 years; it occurred gradually over time beginning in the 1970s.  It was noted that he currently wearing hearing aids.  From the above condition, the functional impairment is problems with conversational speech and clarity of individual speakers.  The condition did not result in any time lost from work.  On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT

15
25
70
75
LEFT

20
35
7
65

Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 88 percent in the left ear.  The examiner stated that the Veteran had a sensorineural hearing problem; if treated, the problem will not cause in the change in the hearing threshold level.  

At his personal hearing in September 2010, the Veteran reported that his hearing had gotten progressively worse.  The Veteran stated that, even with the hearing aids, he still has to ask for people to repeat themselves.  The Veteran also stated that he has difficulty understanding people.  The Veteran indicated that he has difficulty hearing when there are multiple voices or when there's background noise.  

Received in October 2010 was a statement from James Davidson, M.A., dated in September 2010, indicating that the Veteran has been under his care since 1984; he noted that the Veteran currently has a moderate middle and high frequency sensorineural hearing loss in both ears.  Dr. Davidson reported that sensorineural hearing loss is not treatable by conventional medical and surgical means; the only hope for improved hearing is the use of amplification.  

Received in April 2011 were VA progress notes dated from March 2009 to April 2011.  These records show that the Veteran received ongoing clinical attention for hearing loss.  The Veteran was seen for a hearing evaluation in December 2009; the assessment was slight to severe sensorineural hearing loss, right ear, and slight to moderately severe sensorineural hearing loss, left ear.  He was fitted for hearing aids in January 2010.  

The Veteran was afforded a VA examination in June 2011.  The Veteran indicated that his hearing loss persists.  He stated that he asks people to repeat what they say.  On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT

25
40
75
80
LEFT

25
50
70
70

The examiner stated that word recognition scores were not considered acceptable for rating purposes due to the pattern of the responses; therefore, the word recognition test was deemed invalid.  The diagnosis was bilateral sensorineural hearing loss, normal to severe.  The examiner stated that the Veteran had enough hearing within normal limits to follow conversations in ideal listening conditions.  In mild to moderate background noise and with higher pitched voices, he will have some difficulty following conversations; however, he will do fairly well in these situations with his hearing aids.  The examiner further noted that, in adverse listening conditions (high background noise), the Veteran would have difficulty with conversations even with his hearing aids.  

Received in August 2011 were treatment reports from Dr. James Davidson, dated from February 1988 to September 2010.  These records show that the Veteran has received ongoing evaluation from Dr. Davidson for hearing loss.  Among these records is a duplicate medical statement from Dr. Davidson, dated in September 2010, wherein he stated that the Veteran has been under his care since 1984; he noted that the Veteran currently has a moderate middle and high frequency sensorineural hearing loss in both ears.  

The Veteran was afforded another VA examination in January 2012.  On the authorized audiological evaluation, in January 2012, pure tone thresholds, in decibels, were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT

30
45
75
80
LEFT

35
55
75
75

Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 88 percent in the left ear.  The pertinent diagnosis was sensorineural hearing loss in both ears.  

III.  Analysis

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule).  38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1, 4.2, 4.10 (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).   

The requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based upon a single, incomplete, or inaccurate report and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  After review of the evidentiary record, the Board concludes that the Veteran's hearing loss disability is such that a uniform evaluation is warranted.  

After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record.  38 U.S.C.A. § 7104(a).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3.  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54.  

The present appeal involves the Veteran's claim that the severity of his hearing loss warrants a higher disability rating.  The Veteran's hearing loss has been rated under the provisions of Diagnostic Code 6100.  In evaluating hearing impairment, disability ratings are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are conducted.  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.  38 C.F.R. § 4.85.  

When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, 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).  Additionally, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 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).  The evidence of record herein indicates that the Veteran's bilateral hearing loss pattern does not fit the requirements of either unusual pattern of hearing impairment.  

After a review of the evidence, the Board finds that the criteria for a compensable rating for the Veteran's service-connected bilateral hearing loss are not met.  Accordingly, his claim for a compensable rating is denied.  

Based on the December 2004 VA examination report, under Table VI contained in Diagnostic Code 6100, the average pure tone thresholds and speech recognition scores correspond to a numeric designation of Level I hearing in the right ear and Level II in the left ear.  The intersection point for these categories under Table VII shows that the hearing loss does not exceed the levels contemplated for the currently assigned noncompensable schedular rating.  

Additionally, the Veteran's most recent VA examination in January 2012 shows a right ear puretone decibel loss of 58 with speech recognition of 88 percent.  This corresponds to a numeric designation of Level III hearing in the right ear.  38 C.F.R. § 4.87, Table VI (2013).  He has a left ear average puretone decibel loss of 60 with speech recognition of 88 percent.  These findings are consistent with Level III hearing in the left ear.  These combined numeric designations result in a rating of 0 percent under Diagnostic Code 6100.  38 C.F.R. § 4.85, Table VII (2013).  All audiometric examinations of record result in a noncompensable evaluation.  

Although the VA examinations and treatment record show that the Veteran clearly has hearing loss, the audiometric test results do not support entitlement to an increased evaluation for bilateral hearing impairment.  The Board has reviewed all the medical records in the claims file and found that there is no evidence related to hearing loss that supports a higher rating.  

The Board notes that the Veteran's assertions and testimony that his hearing has deteriorated are credible.  However, in determining the actual degree of disability, the examination findings are more probative of the degree of impairment.  The examiners considered the Veteran's complaints regarding the effect on daily activities, and they conducted the required tests.  Moreover, as noted above, the Court has noted that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  In this case, the numeric designations result in a noncompensable disability evaluation.  38 C.F.R. Part 4 Diagnostic Code 6100.  Accordingly, the noncompensable disability evaluation presently assigned accurately reflects the degree of the Veteran's service-connected hearing impairment for rating purposes.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. Part 4, § 4 .85, Diagnostic Code 6100.  

As a final matter, the Board has considered whether the Veteran's bilateral hearing loss disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extraschedular rating 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 extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are 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.").  Here, the rating criteria reasonably describe the Veteran's disability level , and provide for higher ratings for more severe hearing loss than is shown by the evidence.  Thus, the Veteran's 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 extraschedular consideration is not warranted. 

Based on the foregoing, the claim for a compensable evaluation for a bilateral hearing loss must be denied.  In reaching this 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 helpful to this claimant.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991).  



ORDER

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



________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs