Citation Nr: 1337312	
Decision Date: 11/15/13    Archive Date: 11/26/13

DOCKET NO.  10-15 377	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUE

Entitlement to an initial compensable disability rating for bilateral hearing loss prior to February 21, 2012, and a rating in excess of 10 percent since February 21, 2012.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Devon Rembert-Carroll, Associate Counsel

INTRODUCTION

The Veteran had active service from January 1983 to January 2007.

The matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Jackson, Mississippi.  

The Veteran testified before the undersigned in September 2011.  A copy of the transcript has been associated with the claims file.  In January 2012, the Board remanded the claim for additional development.  

In an April 2012 rating decision, the RO increased the Veteran's disability rating for bilateral hearing loss to 10 percent, effective February 21, 2012.  Because less than the maximum available benefit for a schedular rating was awarded, the claim remains before the Board.  See AB v. Brown, 6 Vet. App. 35 (1993).

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  A review of the documents in such file reveals an October 2013 Appellate Brief.  The other documents are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.


FINDINGS OF FACT

1.  Prior to February 21, 2012, the numeric designation of hearing impairment based on puretone threshold average and speech discrimination did not result in a compensable rating.

2.  Since February 21, 2012, the numeric designation of hearing impairment based on puretone threshold average and speech discrimination did not result in a rating in excess of 10 percent.


CONCLUSION OF LAW

A compensable rating prior to February 21, 2012, or a rating in excess of 10 percent since February 21, 2012, is not warranted for the Veteran's bilateral hearing loss.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.85, Diagnostic Code (Code) 6100, 4.86 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  The Veteran's claim for a higher initial rating for bilateral hearing loss arises from his disagreement with the initial evaluation assigned following the grant of service connection.  Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  

VA also has a duty to assist the Veteran in the development of a claim.  This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  Here, the Veteran's statements and service treatment records have been associated with the claims folder.  Additionally, neither the Veteran nor his representative has identified any outstanding records that have not been requested or obtained.  

The Veteran was afforded VA examinations in January 2009 and a VA examination in February 2012.  The Board finds that the February 2012 VA examination was adequate because the examiner conducted a clinical evaluation, reviewed the Veteran's medical history, and described the Veteran's bilateral hearing loss in sufficient detail so that the Board's evaluation is an informed determination.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  Moreover, the January 2013 VA audiological examination specifically includes the Veteran's reported functional effects of his bilateral hearing loss, namely his difficulty hearing when the speaker is not facing him and the need to ask people to repeat themselves.  See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) (holding that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report).  The Board notes that while the January 2009 VA examination is not in compliance with the Martinak criteria, the examination of puretone thresholds is adequate for schedular purposes.  Additionally, the Board is satisfied that there has been substantial compliance with the January 2012 remand directives.  Stegall v. Nicholson, 21 Vet. App. 120, 124 (2007).  The Board thus finds that all necessary development has been accomplished and appellate review may proceed.  See Bernard v. Brown, 4 Vet.App. 384 (1993). 

Legal Criteria

Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R., Part 4.  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 to be assigned.  38 C.F.R. § 4.7.  The Veteran's entire history is reviewed when making disability evaluations.  See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 

Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West 12 Vet. App. 119, 126 (1999).  Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

In cases for which the evaluation of hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test.  Examinations will be conducted without the use of hearing aids.  38 C.F.R. § 4.85(a).  

Hearing loss ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with average hearing thresholds determined by puretone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 cycles per second.  "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 (including those in §4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIa.  38 C.F.R. § 4.85, DC 6100.

The rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness.  38 C.F.R. § 4.85.  The horizontal rows in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  The vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test.  The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect.  See 38 C.F.R. §§ 4.85, 4.86.

The regulations also provide that in cases of exceptional hearing loss, i.e. when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, the Roman numeral designation will be determined for hearing impairment, separately, from either Table VI or Table VIa, whichever results in the higher numeral.  38 C.F.R. § 4.86.  A Roman numeral designation will also be determined from either Table VI or Table VIa, whichever results in the higher numeral, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz.  That numeral will then be elevated to the next higher Roman numeral.

In making all determinations, the Board must fully consider the lay assertions of record.  A Veteran is competent to report on that of which he or she has personal knowledge.  Layno v. Brown, 6 Vet. App. 465, 470 (1994).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 

Analysis

The Veteran was afforded a VA examination in January 2009.  The Veteran reported that he has to turn the television up and has to ask people to repeat themselves.  The right ear had pure tone thresholds of 15, 85, 70, and 70 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively.  The left ear had pure tone thresholds of 15, 20, 60, and 75 decibels at these same frequencies.  The average threshold for the right was 60 decibels and the average threshold for the left ear was 42.5 decibels.  The Veteran had 84 percent speech recognition for the right ear and 96 percent for the left ear.  This translates to level I hearing in the left ear.  An exceptional pattern of hearing loss was shown in the right ear, pursuant to 38 C.F.R. § 4.86(b), as the puretone threshold was 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz.  Thus, the use of Table VI or Table VIa is available, whichever results in a higher rating.  Table VI indicates a numeric designation of III for the right ear.  Table VIa indicates a numeric designation of IV for the right ear.  Thus it is more favorable for the Veteran to use table VIa.  The point of intersection on table VII reflects the level of hearing loss consistent with a noncompensable rating. 

The Veteran testified at the September 2011 Board hearing that he had a constant ringing in his ears and that his hearing has gotten worse over the years.  The Veteran also testified that his hearing loss did not affect his ability to do his job.  

In light of the above, the Board finds that prior to February 21. 2012, there is no evidence that the Veteran's bilateral hearing loss approximated the criteria for a compensable evaluation.  

The Veteran was afforded another VA examination on February 21, 2012.  The Veteran reported that his hearing loss impacted his ordinary conditions of daily life in that he had difficulty understanding when not facing the speaker and that he has to ask people to repeat themselves.  The right ear had pure tone thresholds of 15, 85, 70, and 70 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively.  The left ear had pure tone thresholds of 15, 30, 80, and 80 decibels at these same frequencies.  The average threshold for the right was 60 decibels and the average threshold for the left ear was 51.25 decibels.  The Veteran had 85 percent speech recognition for the right ear and 84 percent for the left ear.  This translates to level II hearing in the left ear.  An exceptional pattern of hearing loss was shown in the right ear, pursuant to 38 C.F.R. § 4.86(b), as the puretone threshold was 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz.  Thus, the use of Table VI or Table VIa is available, whichever results in a higher rating.  Table VI indicates a numeric designation of III for the right ear.  Table VIa indicates a numeric designation of IV, raised to VLJ, for the right ear.  Thus it is more favorable for the Veteran to use table VIa.  The point of intersection on table VII reflects the level of hearing loss consistent with a 10 percent rating. 

The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's report of difficulty hearing the television, difficulty hearing when not facing the speaker, and the need to ask people to repeat themselves.  The Board further acknowledges that the Veteran is competent to report his hearing loss symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).  Moreover, the Board finds that the Veteran's reports of his symptomatology are credible, as his reported symptomatology has remained consistent over time.  However, the Board notes that the rating criteria for hearing impairments is designed to consider the Veteran's diminished hearing acuity, and as outlined above, the assignment of a disability evaluation on a schedular basis is a purely mechanical process based on audiometric test results.  As such, the Board concludes that the Veteran's assigned schedular evaluation is appropriate.  As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply.  See 38 U.S.C.A. § 5107(b).  

The Board has also considered rating the Veteran on an extraschedular basis.  The rating schedule represents, as far as is practicable, the average impairment of earning capacity.  Ratings will generally be based on average impairment.  38 C.F.R. § 3.321(a), (b).  To afford justice in exceptional situations, an extraschedular rating can be provided.  38 C.F.R. § 3.321(b).

Under Thun v. Peake, 22 Vet. App. 111 (2008), the RO or the Board must 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 Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional 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 C&P 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 Veteran's service-connected bilateral hearing loss is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology.  Specifically, as discussed above, the relevant hearing loss criteria contemplate the Veteran's puretone and speech discrimination scores as well as his own descriptions of how this disability impacts his ordinary conditions of daily life. The evidence does not indicate the presence of any impairment that cannot be classified in one of the above categories.   

Finally, the Court has held that entitlement to a TDIU is an element of all appeals for a higher rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Entitlement to a TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability.  The Board notes that the Veteran testified at the September 2011 Board hearing that his bilateral hearing loss does not affect his ability to do his job.  As there is no evidence that the Veteran's service-connected bilateral hearing loss precludes employment, the question of entitlement to a TDIU is not raised.


ORDER

Entitlement to an initial compensable disability rating for bilateral hearing loss prior to February 21, 2012, and a rating in excess of 10 percent since February 21, 2012 is denied.  



____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs