Citation Nr: 1336529 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 12-04 845 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a compensable disability rating for bilateral hearing loss. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD U. Ifon, Associate Counsel INTRODUCTION The Veteran had active service from February 1967 to January 1971. His Service medals and decorations include the Combat Action Ribbon and Republic of Vietnam Campaign Medal. This matter arises before the Board of Veterans' Appeals (Board) from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which, in pertinent part, granted service connection for the Veteran's bilateral hearing loss and assigned a noncompensable disability rating, effective June 18, 2010. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran exhibits an exceptional pattern of hearing loss in the right ear. 2. At worst, with consideration of the exceptional pattern of hearing loss, the Veteran has level VIII hearing loss in the right ear and level I hearing loss in the left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). The Veteran's appeal concerns the initial evaluation assigned following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Dunlap v. Nicholson, 21 Vet. App. 112, 117 (2007). Therefore, no further notice is needed under VCAA. VA has fulfilled its duty to assist. The RO has made reasonable and appropriate efforts to assist the Veteran in obtaining the evidence necessary to substantiate this claim, including requesting information from the Veteran regarding pertinent medical treatment he may have received and obtaining such records, as well as affording him a VA examination. The Veteran was afforded a pertinent VA examination in October 2010. The examiner provided sufficient detail for the Board to make a decision and the report is deemed adequate with respect to this claim because it fully describes the functional effects caused by the Veteran's hearing disability. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Hence, VA has fulfilled its duty to notify and assist the Veteran, and adjudication at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet, App. 384, 394 (1993). The appeal is now ready to be considered on the merits. Governing Laws and Regulations for Increased Rating Disability evaluations are determined by applying the criteria in the VA Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R., Part 4 (2013). Each disability must be viewed in relation to its history, and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, the current level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate evaluations may be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Further, the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Veteran's bilateral hearing loss is evaluated under Diagnostic Code 6100. 38 C.F.R. § 4.85. 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 at the frequencies of 1000, 2000, 3000 and 4000 Hertz (Hz). 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 1000, 2000, 3000 and 4000 Hz, 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). Under 38 C.F.R. § 4.85, Table VII (Percentage Evaluation for Hearing Impairment), the percentage evaluation is determined 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 row and column intersect. 38 C.F.R. § 4.85(e). In essence, defective hearing is rated on the basis of a mere mechanical application of the rating criteria. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Analysis As previously noted, the Veteran was denied a compensable rating for bilateral hearing loss. He asserts that a compensable rating is warranted. The Veteran received audiology examinations at the Woodland Clinic Medical Group in February 1997, August 1998, January 2002 and June 2002. The Board is unable to rely on the audiometric data from these examinations because there was no frequency measurement at 3000 Hz and it is not clear whether the examiner conducted the speech discrimination test using the Maryland CNC. 38 C.F.R. § 4.85. In March 2010, the Veteran received an audiology examination at the Sutter West Medical Group. Again, the Board is unable to rely on the audiometric findings from this examination because there is no frequency measurement for the right ear at 1000 Hz, and there is no indication the examiner conducted the speech discrimination test using the Maryland CNC. 38 C.F.R. § 4.85. The Veteran was afforded a VA audiology examination in October 2010. At that time, puretone thresholds, in decibels, were as follows: Frequency (Hz) 1000 2000 3000 4000 Average Right 65 75 90 105 83.75 Left 25 55 70 65 53.75 The Maryland CNC speech discrimination test score was 80 percent in the right ear and 94 percent in the left ear. The Veteran reported hearing difficulty in most environments and especially with the presence of background noise. Exceptional hearing loss exists when the puretone threshold at the frequencies of 1000, 2000, 3000, and 4000 Hz is 55 decibels or more; or where the puretone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz. 38 C.F.R. § 4.86. The Veteran's right ear puretone threshold at each of the above specified frequencies was greater than 55 decibels; therefore, the Board must consider exceptional patterns of hearing impairment (Table VIa) for the right ear alone. See 38 C.F.R. § 4.86(a) (2013). The Board will determine the Roman numeral designation for hearing impairment of the right ear from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Using Table VI, the Veteran's October 2010 examination revealed level V hearing loss in the right ear and level I in the left ear. However, when Table VIa is used for the right ear, the hearing loss increases to level VIII. Since Table VIa results in a higher numeral, a level VIII hearing loss will be applied to the right ear. When level I hearing loss in the left ear is combined with level VIII hearing loss in the right ear and applied to Table VII for a percentage evaluation, the Veteran's hearing loss is still evaluated as noncompensable. 38 C.F.R. § 4.85. Based on the foregoing, the Board concludes that the preponderance of the evidence is against a compensable rating for the Veteran's service-connected bilateral hearing loss. Although the Veteran argues his hearing loss cannot be assigned a noncompensable evaluation because VA issued him hearing aids, the Board reiterates that the assignment of an evaluation is a mechanical application of the rating criteria. See Lendenmann, 3 Vet. App. at 349. Thus he cannot receive a compensable initial rating as a matter of law. The evidence of record does not support the need for staged ratings. See Hart, 21 Vet. App. at 509. Ratings will generally be based on average impairment. See 38 C.F.R. § 3.321 (2013). In exceptional cases an extraschedular rating may be provided. Id. The Court has set out a three-part test for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of his disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). See also Martinak, 21 Vet. App. at 456 (functional effects of hearing loss must be considered in an extraschedular determination). Here, however, the schedular rating criteria contemplate the extent and severity of the Veteran's service-connected bilateral hearing loss symptoms, which is primarily productive of difficulty hearing, particularly where there is background noise. Additionally, ratings are provided for loss that is more severe than the Veteran's current hearing loss. As such, the Board finds that the rating criteria are therefore adequate to evaluate the Veteran's bilateral hearing loss, and referral for consideration of extraschedular rating is not warranted. Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). Finally, the Veteran has not specifically argued, and the record does not otherwise reflect, that his hearing loss renders him totally unemployable. Accordingly, the Board concludes that a claim for total disability based on unemployability (TDIU) due to service-connected disability has not been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. ____________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs