Citation Nr: 1337487	
Decision Date: 11/18/13    Archive Date: 11/26/13

DOCKET NO. 10-18 416A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUE

Entitlement to an initial compensable rating for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

C. Wendell, Associate Counsel







INTRODUCTION

The Veteran served on active duty from March 1967 to February 1970.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2009 decision review officer decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In that decision, the RO granted service connection for bilateral hearing loss and assigned a noncompensable rating. The Veteran appealed the initial rating.

The Veteran did not file a VA Form 9, Substantive Appeal, in this case. However, the Veteran submitted a statement on May 25, 2010, which was within the 60 day appellate period following the issuance of the statement of the case. The RO accepted this statement as a substantive appeal in lieu of a Form 9. As such, the Board finds this appeal was properly perfected.

During the pendency of the current appeal, the Veteran filed an additional claim for a compensable rating for bilateral hearing loss. The RO issued a supplemental statement of the case in April 2012 taking into account the Veteran's August 2010 claim and all evidence submitted along with such claim. Therefore, all relevant evidence has been reviewed by the agency of original jurisdiction and the Veteran will not be prejudiced by a decision on his claim for an initial compensable rating for bilateral hearing loss. The Veteran submitted further evidence in May 2012, after the issuance of the supplemental statement of the case. However, RO review of that evidence was waived by the Veteran's representative in an informal hearing presentation submitted on November 1, 2013.

A claim for increased evaluation includes a claim for a finding of total disability based on individual unemployability (TDIU), where there is evidence of record regarding unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has not indicated during the pendency of the claim that he is prevented from working due to his hearing loss. Therefore, the Board finds an inferred claim of TDIU has not been raised.

The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence.


FINDING OF FACT

Throughout the initial-rating period, the Veteran's hearing impairment has been no worse than Level I in the right ear and Level I in the left ear.


CONCLUSION OF LAW

The criteria for an initial compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.85, Diagnostic Code 6100 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).

A. Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In this case, the appeal arises from the Veteran's disagreement with the initial evaluation 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). No additional discussion of the duty to notify is therefore required. 

B. Duty to Assist

The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The RO associated the Veteran's service and VA treatment records with the claims file, as well as those records provided by the Veteran himself. No other relevant records have been identified and are outstanding. As such, the Board finds VA has satisfied its duty to assist with the procurement of relevant records. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided with VA audiological examinations in February 2008 and June 2010. The examinations were adequate because the examiners were state licensed audiologists, a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test were provided, and the opinions noted the effect of the hearing loss on the Veteran's occupational and daily functioning. See 38 C.F.R. § 4.85; Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Based on the foregoing, the Board finds the examination reports to be thorough, complete, and sufficient bases upon which to reach a decision on the Veteran's claim for an initial compensable rating for bilateral hearing loss. See Rodriguez-Nieves v. Peak, 22 Vet. App. 295, 302-05 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

The Veteran's representative contends that a new examination is warranted, as the June 2010 examination is now approximately three years old. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. However, a new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination. See 38 C.F.R. § 3.159; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). Here, the Veteran has not indicated that his hearing loss has increased in severity since his June 2010 VA audiological examination. The Veteran's VA treatment records and the letter from the VA hearing aid program that was submitted are also silent concerning complaints of an increase in severity of the Veteran's hearing loss. As there is no evidence of record showing the Veteran's bilateral hearing loss has increased in severity since his June 2010 examination, the Board finds that a remand for a new examination and further delay of this claim are not warranted.

Since VA has obtained all relevant identified records and provided adequate medical examinations, its duty to assist in this case is satisfied.

II. Merits of the Case

The Veteran contends that he is entitled to an initial compensable rating for his service-connected bilateral hearing loss. The preponderance of the evidence is against a finding that the Veteran's bilateral hearing loss warrants a compensable rating, and therefore the claim is denied.

A. Increased Schedular Rating

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 

If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating 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.

Assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85. 

The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85.
"Puretone threshold average" as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85(d).

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 row and column intersect. 38 C.F.R. § 4.85(b).

Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c).

Table VII, "Percentage Evaluations of Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85(e).

Special provisions apply in instances of exceptional hearing loss. See 38 C.F.R. § 4.86. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the adjudicator must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). 

Also, 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. That numeral will then be elevated to the next higher Roman numeral. Each ear is evaluated separately. 38 C.F.R. § 4.86(b).

In this case, the Veteran was provided with two VA audiological examinations. The results of the February 2008 audiological examination, as measured by a puretone audiometry test, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
10
50
35
LEFT
15
10
5
45
20

Based on these results, the average puretone threshold was 28 Hertz for the right ear and 20 Hertz for the left ear. See 38 C.F.R. § 4.85(d). Speech recognition was 96 percent in the right ear and 100 percent in the left ear, as measured by the Maryland CNC test. Applying these values to Table VI, the result is a Level I Roman numeral designation for each ear.

As to functional impairment, the Veteran reported that he has difficulty hearing soft voices and that sounds generally need to be louder in order for him to hear them. The Veteran also reported that voices generally are harder to understand.

The results of the June 2010 audiological examination, as measured by a puretone audiometry test, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
30
30
65
60
LEFT
15
15
10
50
35

The average puretone threshold was 46 Hertz in the right ear and 28 in the left ear. See 38 C.F.R. § 4.85(d). Speech recognition was 95 percent in the right ear and 96 percent in the left ear, as measured by the Maryland CNC test. Applying the results to Table VI, a Level I Roman numeral designation is again reached for each ear.
As to functional impairment, the examiner noted that the Veteran's hearing loss forces him to concentrate intently during conversations, which is fatiguing, and repeatedly ask people to repeat themselves. The examiner stated that the Veteran's level of hearing loss will likely cause significant communication problems in all but the quietest environments, and that hearing instruments would be appropriate to ensure that the Veteran can continue his volunteer work.

When the Level I designations are mechanically applied to Table VII, the result is a noncompensable rating. 38 C.F.R. § 4.85; Lendenmann, 3 Vet. App. 345. The results reported in either the February 2008 or the June 2010 audiological evaluations do not meet the requirements for evaluation based on an exceptional pattern of impairment. See 38 C.F.R. § 4.86(a)-(b).

As noted previously, in addition to objective test results, the functional effects of a hearing disability must be discussed for an audiological examination report to be adequate. Martinak, 21 Vet. App. at 455. The February 2008 examiner noted the Veteran had trouble hearing softer voices, and that sounds generally seemed to be quieter than they previously were. The June 2010 examiner noted that there was functional impairment significant enough to cause communication problems, and advised that the Veteran obtain hearing instruments so that he could continue his job, which required communication over the phone. Thus, the functional impact of the Veteran's hearing loss was considered. No other medical evidence concerning the Veteran's bilateral hearing loss, specifically additional audiograms, is of record. 

The Board has considered the Veteran's lay statements, in which he generally contends that his hearing is worse than his current rating. The Veteran has also submitted a letter from the VA hearing aid program showing that he has been provided with hearing aids. While this letter establishes that the Veteran currently has bilateral hearing loss requiring amplification, the Board is left with the objective evidence of the audiograms documenting the severity of the loss. The June 2010 VA examiner noted that the Veteran likely would require hearing aids even though the results from the testing at that examination indicated the Veteran's bilateral hearing loss did not rise to the level of a compensable rating. Thus, it is possible to have bilateral hearing loss at a noncompensable level that still necessitates the use of hearing aids.

Further, as was indicated above, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. Here, the objective medical evidence of record consists of the two VA audiological examinations, and both indicate that the Veteran's hearing loss does not rise to the level of an initial compensable rating. See 38 C.F.R. § 4.85. For these reasons, the Veteran's claim for an initial compensable rating for bilateral hearing loss is denied.

All potentially applicable codes have been considered, and there is no basis to assign an evaluation in excess of the currently assigned rating for the Veteran's bilateral hearing loss. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).  Additionally, staged ratings are not warranted, as the Veteran has had a relatively stable level of symptomatology throughout the appeal.  Any increases in severity were not sufficient for a higher rating for the reasons discussed above.  See Fenderson, 12 Vet. App. at 126-27.

B. Extraschedular Rating

Consideration has also been given to the possibility of assignment of an extraschedular evaluation under 38 C.F.R. § 3.321. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. 

If not, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If an exceptional disability picture, including such factors as marked interference with employment and frequent periods of hospitalization, exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination on whether justice requires an extraschedular rating. Id.

Here, the rating schedule is adequate as it fully contemplates the symptoms of the Veteran's hearing loss - a decrease in hearing acuity. Therefore, extraschedular evaluation is not appropriate, and need not be further discussed. 38 C.F.R. § 3.321; Thun, 22 Vet. App. 111.


ORDER

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



____________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs