Citation Nr: 1337804 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 12-33 478A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial compensable disability rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Buchs, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from October 1969 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Board has reviewed the physical claims file and both the Veterans Benefits Management System (VBMS) and "Virtual VA" files so as to insure a total review of the evidence. As the Veteran has disagreed with the initial rating assigned following the grant of service connection for bilateral hearing loss, the Board has characterized this issue as one of entitlement to a higher initial disability rating. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). FINDINGS OF FACT 1. VA audiometric testing performed in December 2010 revealed Level II hearing loss in the right ear and Level IV hearing loss in the left ear. 2. VA audiometric testing performed in June 2013 revealed Level I hearing loss in the right ear and Level V hearing loss in the left ear. CONCLUSION OF LAW The criteria for a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155, (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326, 4.1, 4.85, 4.86, Diagnostic Code 6100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013). The Veteran's appeal for a compensable initial rating arises from his disagreement with the initial evaluation following the grant of service connection for bilateral hearing loss; no additional notice is required. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the United States Court of Appeals for Veterans Claims (Court) have held that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board finds that all necessary development has been accomplished, and therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App 384 (1993). VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A. VA has obtained service records, VA treatment records, and other records identified by the Veteran. The Veteran has been afforded adequate VA audiometric examinations in December 2010 and June 2013. Conclusions reached and diagnoses given were consistent with the examination reports. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi 16 Vet. App. 183 (2002). Hearing Loss Rating Criteria Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2 (2013). In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of a veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Rating Schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on puretone thresholds and controlled speech discrimination (Maryland CNC) testing. Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85. The "puretone threshold average" as used in Tables VI, is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85(d). Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). 38 C.F.R. § 4.86 provides for exceptional patterns of hearing impairment. 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. Each ear is evaluated separately. 38 C.F.R. § 4.86(a) (2013). 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 from either Table VI or Table VIA, whichever results in the higher numeral. That numeral is then elevated to the next higher Roman numeral. Id. Each ear is evaluated separately. 38 C.F.R. § 4.86(b) (2013). Bilateral Hearing Loss Rating Analysis After a review of all the evidence in this case, the Board finds that a preponderance of the evidence is against the appeal for an initial compensable disability rating. VA audiometric testing performed in December 2010 revealed Level II hearing loss in the right ear and Level IV hearing loss in the left ear; and VA audiometric testing performed in June 2013 revealed Level I hearing loss in the right ear and Level V hearing loss in the left ear. In personal statements received in November 2011, January 2012, December 2012, and May 2013, the Veteran reported that he has experienced hearing loss, which has affected his family and professional life, and made it difficult for him to carry on conversations in crowded or noisy rooms. The Veteran also stated that he has used several hearing aids and "[lost] jobs due to the fact that [he] did not hear what was told to [him]." On the VA authorized audiological evaluation in December 2010, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 60 65 65 LEFT 45 60 70 70 Speech audiometry revealed speech recognition ability of 90 percent in the right ear and of 82 in the left ear. The Veteran complained of difficulty discriminating some speech sounds and "hearing and understanding when in the presence of background noise and when given instructed commands at work." The Board reviewed private treatment records from Hear PA received in December 2012 and January 2012. The private treatment records include audiometric findings from a December 2011 evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 60 -- 70 LEFT 50 70 -- 75 The audiometric findings do not include puretone thresholds for 3000 Hertz, as required in an examination for hearing impairment for VA purposes under 38 C.F.R. § 4.85. Without the puretone threshold at each of the four specified frequencies, the puretone threshold average, used to identify the Roman numeral designation for hearing impairment from Table VI, cannot be determined. Speech test results were provided; however, none of the tests conducted where noted as being the Maryland CNC, as required. 38 C.F.R. § 4.85. Therefore, the Board finds that the December 2011 audiological evaluation from Hear PA is not adequate for rating purposes and its findings have not been considered in evaluating the Veteran's disability. 38 C.F.R. § 4.85. On the VA authorized audiological evaluation in June 2013, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 60 65 70 LEFT 60 60 65 70 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 96 in the left ear. The Veteran reported great difficulty understanding conversational speech in noise or distances without visual cues. The December 2010 VA audiometric findings, applied to Table VI, yield a numeric designation of (II) in the right ear (54 decibel puretone threshold average, and 90 percent speech discrimination) and a numeric designation of (IV) in the left ear (61 decibel puretone threshold average, and 82 percent speech discrimination). The numeric designation for the right ear (II) along with the numeric designation for the left ear (IV), entered into Table VII, produce a 0 (zero) percent evaluation for hearing impairment. The Board notes that puretone thresholds reported on the June 2013 VA audiological evaluations for the left ear were 55 decibels or more at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz). Thus, the provision of 38 C.F.R. § 4.86 for exceptional patterns of hearing impairment do apply in this case. The June 2013 VA audiometric findings, applied to Table VI for the right ear and Table VIa for the left ear, yield a numeric designation of (I) in the right ear (56 decibel puretone threshold average, and 98 percent speech discrimination) and a numeric designation of (V) in the left ear (64 decibel puretone threshold average). The numeric designation for the right ear (I) along with the numeric designation for the left ear (V), entered into Table VII, produce a 0 percent evaluation for hearing impairment. Based on a full review of the record, including the December 2010 and June 2013 VA audiological evaluations, the Board finds that a compensable evaluation is not warranted for the Veteran's hearing loss at any point during the appeal period. The Board has considered the lay statements submitted by the Veteran and is aware of the complaints about the Veteran's inability to hear well. However, the Veteran's description of his service-connected disability must be considered in conjunction with the clinical evidence of record, as well as the pertinent rating criteria. In this regard, the Board emphasizes that disability ratings are derived by a mechanical application of the rating schedule. Lendenmann, 3 Vet. App. at 349. Thus the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. Here, mechanical application of the rating schedule to the audiometric findings does not establish entitlement to a compensable schedular evaluation for bilateral hearing loss. In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that, relevant to VA audiology examinations, 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 Court also noted, however, that even if an audiologist's description of the functional effects of the veteran's hearing disability was somehow defective, the veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. In this regard, the December 2010 and June 2013 VA examiners specifically addressed the functional effects caused by the Veteran's hearing loss disability, by noting that the Veteran's situations of greatest difficulty are understanding speech in background noise and from a distance without visual cues. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for an initial compensable disability rating for bilateral hearing loss and the claim is denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Extraschedular Consideration The Board has considered whether referral for an extraschedular evaluation is warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The threshold factor for extraschedular consideration is finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for the disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). The Board notes that the Court's rationale in requiring an examiner to consider the functional effects of a veteran's hearing loss disability involves the potential application of 38 C.F.R. § 3.321(b)(1) (2013) in considering whether referral for an extra-schedular rating is warranted. Specifically, the Court noted that, unlike the rating schedule for hearing loss, 38 C.F.R. § 3.321(b)(1) does not rely exclusively on objective test results to determine whether a referral for an extra-schedular rating is warranted. VA's policy requiring VA audiologists to describe the effect of a hearing disability on a Veteran's occupational functioning and daily activities facilitates such determinations. Martinak, 21 Vet. App. at 455. In this Veteran's case, the Board recognizes and considered the Veteran's complaints and difficulty in understanding people with background noise present and from a distance without visual cues. The Veteran stated that he has "lost work due to the fact that [he] couldn't follow instructions;" however, the Veteran is currently employed and there is no evidence that he has had difficulty maintaining employment. The schedular rating criteria specifically provides for ratings based on all levels of hearing loss, including exceptional hearing patterns demonstrated in this case, and as measured by both audiological testing and speech recognition testing. Speech recognition testing is a schedular rating criterion that recognizes such inability to understand certain words in conversation. The functional limitations imposed by the Veteran's hearing loss are specifically contemplated by the criteria discussed above; including the effect of the Veteran's hearing loss on his occupation and daily life. For these reasons, the Board finds that the schedular rating criteria in this case are adequate to rate the Veteran's hearing loss disability. 38 C.F.R. § 3.321(b)(1). See also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs