Citation Nr: 1337463	
Decision Date: 11/18/13    Archive Date: 11/26/13

DOCKET NO.  09-30 142	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to an initial compensable disability rating for bilateral hearing loss. 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. Spector, Associate Counsel







INTRODUCTION

The Veteran had active military service from February 1964 to November 1966.

These matters come before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, which granted service connection for bilateral hearing loss and assigned a noncompensable disability rating, effective September 9, 2008.  The Veteran submitted a Notice of Disagreement (NOD) with this determination March 2009, and timely perfected his appeal in August 2009.  The Veteran's case was subsequently transferred to the Winton-Salem, North Carolina RO.

On the August 2009 Substantive Appeal, the Veteran requested a hearing before a local hearing officer at the local RO.  The Veteran did not appear for his scheduled hearing in November 2009.  He has not provided cause for that failure.  The request is deemed withdrawn and the Board may proceed with the issue on appeal.  38 C.F.R. § 20.704(d) (2012).

The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claim.  A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.


FINDINGS OF FACT

1.  Throughout the pendency of the appeal, the Veteran's hearing acuity was no worse than Level III in both ears. 

2.  The competent and probative medical evidence of record does not show that the Veteran's service-connected bilateral hearing loss is so exceptional or unusual that referral for extraschedular consideration by designated authority is required.


CONCLUSIONS OF LAW

1.  The criteria for a compensable disability rating for bilateral hearing loss have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 (2012).

2.  Application of the extraschedular rating provisions is not warranted in this case.  38 C.F.R. § 3.321(b) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

The 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; 38 U.S.C.A. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1).  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The Veteran's claims arise from his disagreement with the initial evaluation assigned following the grant of service connection for bilateral hearing loss.  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.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), Goodwin v. Peake, 22 Vet. App.  128, 134 (2008), Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, no further notice is required for these claims.   

VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  This duty includes assisting with the procurement of relevant records, including pertinent treatment records, and providing an examination when necessary.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The VA has also done everything reasonably possible to assist the Veteran with respect to his claim for benefits, such as obtaining VA medical records and providing the Veteran with VA examinations in January 2009 and May 2012.  As the Veteran has not indicated that he has received additional treatment for the issue on appeal, the Board thus concludes that there are no additional treatment records outstanding with respect to this claim.  Consequently, the duty to notify and assist has been satisfied as to the claim now being finally decided on appeal.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). 

II. Initial Increased Ratings

Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012).  Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).

Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity.  Separate diagnostic codes identify the various disabilities.  38 C.F.R. § Part 4 (2012).  Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).

In Fenderson v. West, 12 Vet. App 119 (1999), the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case (such as this one) in which the Veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected.  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 "staged rating."

In general, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).

The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  Table VII 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.  See 38 C.F.R. § 4.85 (2012).

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.  See 38 C.F.R. § 4.86(a) (2012).

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.  Each ear will be evaluated separately.  See 38 C.F.R. § 4.86(b) (2012).  

The Veteran's bilateral hearing loss is currently rated as noncompensably disabling under Diagnostic Code 6100.

The Veteran was first afforded a VA audiological examination in January 2009.  The Veteran's pure tone thresholds, in decibels, were interpreted as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
25
40
60
65
LEFT
25
20
30
40
50

The averages were 47.5 in the right ear and 35 in the left ear.  Speech recognition ability was measured as 76 percent in the right ear and 80 percent in the left ear.   The examiner noted that the VA-prescribed Maryland CNC speech recognition test was utilized during testing.  See 38 C.F.R. § 4.85(a) (2012).  

With respect to the Veteran's right ear, applicable law provides that an average pure tone threshold of 47.5 decibels along with speech discrimination of 76 percent warrants a designation of Roman Numeral III under Table VI of 38 C.F.R. § 4.85.  With respect to his left ear, the average pure tone threshold of 35 decibels along with speech discrimination of 80 percent warrants a designation of Roman Numeral III under Table VI of 38 C.F.R. § 4.85.  Under Table VII of 38 C.F.R. § 4.85, where the right ear is Roman Numeral III, and the left ear is Roman Numeral III, the appropriate rating is 0 percent under Diagnostic Code 6100.  

The Veteran was afforded another VA audiological examination in May 2012.  The Veteran's pure tone thresholds, in decibels, were assessed as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
40
50
65
75
LEFT
35
40
45
50
55

The averages were 57.5 in the right ear and 47.5 in the left ear.  Speech recognition ability was measured as 94 percent in both ears using the VA-prescribed Maryland CNC speech recognition test.  See 38 C.F.R. § 4.85(a) (2012).  The examiner noted that the Veteran's hearing loss impacted his ordinary conditions of daily life, including his ability to work, by causing difficulty understanding speech when there was background noise.  

With respect to the Veteran's right ear, applicable law provides that an average pure tone threshold of 57.5 decibels along with speech discrimination of 94 percent warrants a designation of Roman Numeral II under Table VI of 38 C.F.R. § 4.85.  With respect to his left ear, the average pure tone threshold of 47.5 decibels along with speech discrimination of 94 percent warrants a designation of Roman Numeral I under Table VI of 38 C.F.R. § 4.85.  Under Table VII of 38 C.F.R. § 4.85, where the right ear is Roman Numeral II, and the left ear is Roman Numeral I, the appropriate rating is 0 percent under Diagnostic Code 6100.  

The Board is cognizant that the Veteran's VA medical records show that he complained of hearing difficulty and was fitted with hearing aids.  Those medical records, however, do not contain any audiological findings that would entitle the Veteran to a higher rating for his bilateral hearing loss under 38 C.F.R. § 4.85 or 38 C.F.R. § 4.86.  The January 2009 and May 2012 VA audiological testing results noted above show that the Veteran's bilateral hearing loss warrants a noncompensable disability rating based on the rating criteria of Diagnostic Code 6100.  Accordingly, the Board finds that the Veteran is not entitled to compensable rating for bilateral hearing loss during the appeals period.

Additionally, throughout appeals period, the Veteran's puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) were not 55 decibels or more.  Therefore, the Veteran does not demonstrate an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86.  Furthermore, the Veteran's puretone threshold was not assessed at 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  Therefore, the alternate method of rating exceptional patterns of hearing under 38 C.F.R. § 4.86 also does not apply to the Veteran. 

The above determination is based upon consideration of applicable rating provisions.  In Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the Court noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities.  See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2011).  The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing loss disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination.

The Martinak case does not compel or require the assignment of an increased or compensable evaluation for functional impairment attributable to hearing loss.  The fact remains that numeric designations and hence disability evaluations, are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85, without resort to subjective interpretation.  See Acevedo-Escobar v. West, 12 Vet. App. 9, 10   (1998); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  In this case, such mechanical application does not warrant the assignment of an initial compensable disability rating for bilateral hearing loss. 

The May 2012 VA audiological examination discussed the effects of the Veteran's bilateral hearing loss on his occupational functioning and daily life.  Specifically, the Veteran reported that his hearing loss impacted his ordinary conditions of daily life, including his ability to work, by causing him difficulty understanding speech when there was background noise.  However, to the extent that the prior January 2009 VA examination report did not include a discussion of the effects of the Veteran's hearing loss disability on occupational functioning and daily life, the Board finds no prejudice to the Veteran as a result of this omission.  The Veteran (1) alleged no such prejudice and (2) stated at the March 2012 examination during the pendency of the claim the effects of his bilateral hearing loss disability on occupational functioning and daily life.  Thus, any error on the part of the January 2009 VA examiner in failing to address the effects of the Veteran's hearing loss disability on occupational functioning and daily life in the examination report is harmless.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

Based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505 (2007) and Fenderson, the Board has considered whether a staged rating is appropriate.  However, as outlined above, the preponderance of the evidence demonstrates that the Veteran's bilateral hearing loss, in and of itself, has not been more disabling than the noncompensable disability rating assigned at any time during the pendency of this claim.  As such, staged ratings are not warranted.

Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable.  The Veteran's claim of entitlement to a compensable disability rating for bilateral hearing loss must be denied.

III. Extraschedular Consideration

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).

In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, 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.

The symptoms associated with the Veteran's bilateral hearing loss, to include difficulty understanding speech when there was background noise, are not shown to cause any impairment that is not already contemplated by the rating criteria, and the Board finds that the rating criteria reasonably describe his disability.  38 C.F.R. § 4.85, DC 6100 (2012).  For this reason, referral for consideration of an extraschedular rating is not warranted for this claim.  


ORDER

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



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



Department of Veterans Affairs