Citation Nr: 1338071 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 09-37 733 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an initial compensable rating for right ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to August 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which granted a noncompensable rating for right ear hearing loss effective October 25, 2007. The Veteran presented testimony via a videoconference hearing before the undersigned Veterans Law Judge in April 2011. A transcript is of record. The Board remanded the claim in January 2012 for additional development. It has been returned for appellate review. The record before the Board consists of paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. The average Puretone threshold in decibels during an authorized audiological evaluation in October 2007 was 52.5 in the right ear and the speech recognition score using the Maryland CNC word lists was 96 percent. 2. The average Puretone threshold in decibels during an authorized audiological evaluation in May 2008 was 50 in the right ear and the speech recognition score using the Maryland CNC word lists was 100 percent. 3. The average Puretone threshold in decibels during an authorized audiological evaluation in December 2009 was 47.5 in the right ear and the speech recognition score using the Maryland CNC word lists was 96 percent. 4. The average Puretone threshold in decibels during an authorized audiological evaluation in February 2012 was 43.75 in the right ear and the speech recognition score using the Maryland CNC word lists was 86 percent. CONCLUSION OF LAW The criteria for an initial compensable rating for right ear hearing loss have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.85, Tables VI, VIA and VII (Diagnostic Code 6100); 38 C.F.R. § 4.86 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence necessary to substantiate the claim and the division of responsibilities in obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the Veteran is disagreeing with the rating assigned after service connection has been granted and an initial disability rating and effective date have been assigned. Thus the service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA has obtained service treatment records, assisted the Veteran in obtaining evidence, to include private treatment records, afforded the Veteran appropriate examinations to determine the severity of his disability, and afforded the Veteran the opportunity to give testimony before the Board. There was also substantial compliance with the Board's January 2012 remand as a more contemporaneous VA examination was conducted in February 2012. See D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Increased Rating Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate rating codes identify various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. See generally 38 C.F.R. §§ 4.1, 4.2. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations of bilateral sensorineural hearing loss range from noncompensable (zero percent) to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second (Hertz ). See 38 C.F.R. § 4.85 (2013). To evaluate the degree of disability for service-connected hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from Level I for essentially normal acuity through Level XI for profound deafness. See 38 C.F.R. § 4.85 and Tables VI, VIA, and VII (Diagnostic Code 6100) (2013). If impaired hearing is service-connected in only one ear, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I in order to determine the percentage evaluation from Table VII. See 38 C.F.R. § 4.85(f) (2013). Section 4.86 provides an alternative rating method which may be used for certain defined "exceptional patterns of hearing impairment." Section 4.85(a) requires that an examination for hearing loss be conducted by a state-licensed audiologist, and must include both a controlled speech discrimination test (Maryland CNC test) and a pure tone audiometry test. Examinations must be conducted without the use of hearing aids. Section 4.85(c) indicates that Table VIA, "Numeric designation of Hearing Impairment Based Only on Puretone Threshold Average," will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of inconsistent speech discrimination scores. Service connection for right ear hearing loss was established in the July 2008 rating decision that is the subject of this appeal. A noncompensable evaluation was assigned pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100, effective October 25, 2007. The Veteran contends that he is entitled to a compensable rating for his right ear hearing loss because his hearing has worsened and he requires the use of a hearing aid in his right ear to allow him to hear. See September 2009 VA Form 9. The Veteran testified in November 2011 that if he has his hearing aid out, he would be unable to hear. He indicated that problems he encounters on a daily basis include not hearing sirens coming up behind him, difficulty hearing in a restaurant or other public place, and difficulty hearing on the telephone. The Veteran indicated that he had not had his hearing checked at a private facility in some time. The pertinent medical evidence in this case consists of one private audiological evaluation and several VA examination reports. An October 2007 private audiological evaluation conducted at Tulsa Hearing Technologies reveals that Puretone air conduction threshold results in the right ear were: 40 at 500 Hertz; 45 at 1000 and 2000 Hertz; 55 at 3000 Hertz and 65 at 4000 Hertz. This Puretone decibel threshold average equates to 52.5. See 38 C.F.R. § 4.85(d). Word recognition score in the right ear was 96 percent. It was noted that the Veteran was wearing an instrument for the right ear at that time. The Veteran underwent a VA audio examination in May 2008, at which time he reported current symptoms of difficulty hearing in quiet and noise. He denied receiving any treatment for the condition. Auricle and external ear examinations on the right side were within normal limits. There was hearing loss present on the right. Puretone air conduction threshold results in the right ear were: 40 at 500 and 1000 Hertz; 45 at 2000 Hertz; 55 at 3000 Hertz and 60 at 4000 Hertz. The Puretone decibel threshold average equates to 50. Word recognition score in the right ear was 100 percent. The examiner noted that the Veteran had a sensorineural hearing problem and that treatment would not cause a change in the hearing threshold level. The Veteran underwent another VA audio examination in December 2009, at which time he reported current symptoms of difficulty hearing, especially in background noise. He again denied receiving any treatment for the condition. The Veteran reported functional impairment caused by his right ear hearing loss in the form of not always being able to hear people talk when they are talking to him. Auricle and external ear examinations on the right side were within normal limits. Puretone air conduction threshold results in the right ear were: 40 at 500 Hertz; 50 at 1000 and 3000 Hertz; and 45 at 2000 and 4000 Hertz. The Puretone decibel threshold average equates to 47.5. Word recognition score in the right ear was 96 percent. The examiner noted that the Veteran had moderate sensorineural hearing loss in the right ear and that the effect of the condition on the claimant's daily activity was moderate to severe. The Veteran underwent a third VA audio examination in February 2012, at which time he reported he was unable to localize sound and had difficulty understanding speech without his hearing aid. Puretone air conduction threshold results in the right ear were: 0 at 500 Hertz; 45 at 1000, 3000 and 4000 Hertz; and 40 at 2000 Hertz. The Puretone decibel threshold average equates to 43.75. Word recognition score in the right ear was 86 percent. The examiner noted that the Veteran had a mild to moderate sensorineural hearing loss in the right ear. The preponderance of the evidence does not support the assignment of a compensable rating for right ear hearing loss under Diagnostic Code 6100. The Board acknowledges the assertions made by the Veteran that his hearing acuity has decreased; that if he has his hearing aid out, he would be unable to hear; and that he has daily problems due to decreased hearing, such as not hearing sirens coming up behind him, difficulty hearing in a restaurant or other public place, difficulty hearing on the telephone, difficulty hearing in quiet and noise, not always being able to hear people talk when they are talking to him, being unable to localize sound, and difficulty understanding speech without his hearing aid. It finds these assertions to be competent and credible. As noted above, however, a private audiological evaluation was conducted at Tulsa Hearing Technologies in October 2007 and VA audio examinations were performed in May 2008, December 2009 and February 2012. Using the audiometric findings during these audiological evaluations, the Veteran's right ear hearing loss is not compensable under Diagnostic Code 6100. During the October 2007 private evaluation, the Veteran's Puretone decibel threshold average in the right ear was 52.5 and his speech discrimination score was 96 percent. During the May 2008 VA examination, the Veteran's Puretone decibel threshold average in the right ear was 50 and his speech discrimination score was 100 percent. During the December 2009 VA examination, the Veteran's Puretone decibel threshold average in the right ear was 47.5 and his speech discrimination score was 96 percent. During the February 2012, VA examination, the Veteran's Puretone decibel threshold average in the right ear was 43.75 and his speech discrimination score was 86 percent. Under Table VI, 38 C.F.R. § 4.85, the results for the right ear in October 2007, May 2008 and December 2009 correspond to Level I and the results for the right ear in February 2012 correspond to Level II. As the Veteran's left ear is not service-connected, a Level I designation has been assigned to determine the percentage evaluation from Table VII. See 38 C.F.R. § 4.85(f) (2013). The applicable percentage rating for hearing impairment at Level I and Level II for the poorer ear (right ear) and Level I in the better ear (left ear) is zero under Table VII, 38 C.F.R. § 4.85 (2013). The Board has considered whether 38 C.F.R. § 4.86(a) applies in this case. Consideration under this provision, however, is not warranted, as the right ear did not display pure tone thresholds of 55 decibels or more at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz), with each ear evaluated separately. See October 2007 private audiological evaluation; May 2008, December 2009 and February 2012 VA audio examination reports. The Board has also considered whether 38 C.F.R. § 4.86(b) applies in this case. Consideration under this provision, however, is not warranted, as the right ear did not display pure tone thresholds 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, with each ear evaluated separately. Id. In sum, a compensable rating is not warranted for service-connected right ear hearing loss. Extraschedular Consideration Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2013). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual Veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's service-connected right ear hearing loss disability picture is not so unusual or exceptional in nature as to render the noncompensable (zero percent) rating assigned inadequate at any time during the period on appeal. The Veteran's service-connected right ear hearing loss is evaluated under the rating criteria for hearing impairment. The Board finds that the rating criteria used to evaluate this disability specifically contemplates the level of disability and symptomatology associated with right ear hearing loss. See 38 C.F.R. § 4.85. The Veteran's right ear disability is manifested by subjective and objective evidence of decreased hearing acuity, which leads to subjective complaints of difficulty hearing sirens coming up behind him, difficulty hearing in a restaurant or other public place, difficulty hearing on the telephone, difficulty hearing in quiet and noise, not always being able to hear people talk when they are talking to him, being unable to localize sound, and difficulty understanding speech without his hearing aid. When comparing the disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's symptoms are more than adequately contemplated by the zero percent disability rating assigned. Compensable ratings are provided for decreased hearing acuity not exhibited by the Veteran. The criteria for the zero percent disability rating assigned more than reasonably describe the Veteran's disability level and symptomatology. Therefore, the schedular evaluations currently assigned to the service-connected right ear hearing loss is adequate and no referral is required. ORDER A compensable rating for right ear hearing loss is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs