Citation Nr: 1338733	
Decision Date: 11/25/13    Archive Date: 12/06/13

DOCKET NO.  12-17 784	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cheyenne, Wyoming


THE ISSUE

Entitlement to a compensable disability rating for bilateral hearing loss.



REPRESENTATION

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


ATTORNEY FOR THE BOARD

T. Matta, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1967 to June 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) denying the Veteran's request for an increased rating for his bilateral hearing loss, which is currently rated at zero percent.  A notice of disagreement was received in December 2011, a statement of the case was issued in June 2012, a substantive appeal was received in July 2012, and a supplemental statement of the case was issued in July 2012.

FINDING OF FACT

The Veteran has no higher than Level I hearing acuity in both ears.


CONCLUSION OF LAW

The criteria for a compensable evaluation for service-connected bilateral hearing loss disability have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.85, 4.86 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.   See  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA applies to the instant claim.  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication.  A September 2010 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing.  In compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the September 2010 notice also informed him of disability rating and effective date criteria.  The Veteran has received all critical notice, and has had ample opportunity to respond/supplement the record.  He has not alleged that he is prejudiced by a notice defect.  

The Veteran's pertinent treatment records have been secured.  The RO arranged for a VA examination in December 2010.  The Veteran contends that the VA audiological evaluation was inadequate for rating purposes because the test was provided in a sound control room.  The Board notes here that 38 C.F.R. § 4.86(b) appears to be designed to remedy this potential problem.  Under this regulatory provision, when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher Roman numeral.  This provision compensates for a pattern of hearing impairment that is an extreme handicap in the presence of any environmental noise and appears to acknowledge that a speech discrimination test conducted in a quiet room with amplification of sound does not always reflect the extent of impairment experienced in the ordinary environment.  See 64 Fed. Reg. 25202, 25203 (May 11, 1999).

The Board finds that the examination report contains sufficient clinical findings and informed discussion of the pertinent history and features of the disability on appeal to provide probative medical evidence adequate for rating purposes.  The examiner elicited information from the Veteran concerning the functional effects of his disability, noting that the Veteran described his hearing as "with hearing aids good can distinguish language."

The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary.  See generally 38 C.F.R. § 3.159(c)(4).  The Veteran initially requested a hearing but later withdrew this request.  The Veteran has not identified any pertinent evidence that remains outstanding.  VA's duty to assist is met.  Accordingly, the Board will address the merits of the claim.

The Merits of the Claim

The Veteran claims entitlement to assignment of a higher disability rating for his bilateral hearing loss, contending that his disability has been more severely disabling than the initial assigned rating of zero percent reflects.

The Board further notes that it has reviewed all of the evidence in the Veteran's claims file, and in Virtual VA and VBMS (VA's electronic data storage systems), with an emphasis on the evidence relevant to the matter on appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 381 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.

Where an increase in the level of a service-connected disability is at issue, as in the present case, the primary concern is the current level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

The Veteran's appeal for an increased disability rating for bilateral hearing loss arises from a September 2010 claim.  Initially, it should be noted that VA regulations allow for the assignment of an increased rating up to one year prior to receipt of a formal claim for increase when it is factually ascertainable that an increase in disability has occurred.  38 C.F.R. §§ 3.157, 3.400(o)(2).  In this case, VA must review the evidence of record from September 2009 to determine if there was an ascertainable increase in the Veteran's bilateral hearing loss.  In so doing, the Board must also consider all potentially applicable regulations pertaining to rating hearing impairment.

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4.  38 U.S.C.A. § 1155.  The appropriate evaluation for hearing impairment is determined under the criteria in 38 C.F.R. §§ 4.85, 4.86.

Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered.  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 for hearing impairment based on testing conducted by a state-licensed audiologist.  The testing must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test.  38 C.F.R. § 4.85.  However, where the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or there is an exceptional pattern of hearing impairment (as defined in 38 C.F.R. § 4.86), the rating may be based solely on puretone threshold testing.  38 C.F.R. § 4.85, Table VIA. 

In the case where puretone thresholds are 55 decibels or more at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz), either Table VI or Table VIA is applied, using whichever results in the higher Roman numeral designation.  38 C.F.R. § 4.86(a).  In addition, when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the higher numeral of Table VI or Table VIA is applied.  38 C.F.R. § 4.86(b).  

Table VI
Numeric designation of hearing impairment based on puretone threshold average and speech discrimination.

% of
discrim-
ination
Puretone Threshold Average

0-41
42-49
50-57
58-65
66-73
74-81
82-89
90-97
98+
92-100
I
I
I
II
II
II
III
III
IV 
84-90
II
II
II
III
III
III
IV
IV
IV 
76-82
III
III
IV
IV
IV
V
V
V
V 
68-74
IV
IV
V
V
VI
VI
VII
VII
VII 
60-66
V
V
VI
VI
VII
VII
VIII
VIII
VIII 
52-58
VI
VI
VII
VII
VIII
VIII
VIII
VIII
IX 
44-50
VII
VII
VIII
VIII
VIII
IX
IX
IX
X 
36-42
VIII
VIII
VIII
IX
IX
IX
X
X
X 
0-34
IX
X
XI
XI
XI
XI
XI
XI
XI 


Table VIA
Numeric designation of hearing impairment based only on puretone threshold average: 

0-41
42-48
49-55
56-62
63-69
70-76
77-83
84-90
91-97
98-104
105+
I
II
III
IV
V
VI
VII
VIII
IX
X
XI

The findings for each ear from either Table VI or Table VIA are applied to Table VII (Percentage Evaluations for Hearing Impairment) to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poor hearing.  The percentage evaluation is located at the point where the rows and column intersect. 38 C.F.R. § 4.85(e). 

Table VII
Percentage evaluation for hearing impairment (diagnostic code 6100)

 
Poorer Ear
XI
100*
 
 
 
 
 
 
 
 
 
 
X
90
80
 
 
 
 
 
 
 
 
 
IX
80
70
60
 
 
 
 
 
 
 
 
VIII
70
60
50
50
 
 
 
 
 
 
 
VII
60
60
50
40
40
 
 
 
 
 
 
VI
50
50
40
40
30
30
 
 
 
 
 
V
40
40
40
30
30
20
20
 
 
 
 
IV
30
30
30
20
20
20
10
10
 
 
 
III
20
20
20
20
20
10
10
10
0
 
 
II
10
10
10
10
10
10
10
0
0
0
 
I
10
10
0
0
0
0
0
0
0
0
0 
 
XI
X
IX
VIII
VII
VI
V
IV
III
II
I


A zero percent evaluation is provided where hearing in the better ear is I and hearing in the poorer ear is I through IX; where hearing in the better ear is II, and hearing in the poorer ear is II to IV; or where there is level III hearing in both ears.  A 10 percent evaluation is provided where hearing in the better ear is I and hearing in the poorer ear is V to XI; where hearing in the better ear is III and hearing in the poorer ear is IV to VI; or where hearing in the better ear is IV and hearing in the poorer ear is IV to V.  38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100.

As mentioned above, the Veteran's claim seeking an increased rating for bilateral hearing loss was received in September 2010.   

On December 2010 VA audiological evaluation, puretone thresholds, in decibels, were as follows:


1000
2000
3000
4000
R
10
10
45
50
L
10
20
65
80

The average puretone thresholds were 29 decibels in the right ear and 44 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left ear. The Veteran described his hearing as, "with hearing aids good can distinguish language."  The examiner diagnosed mild sensori-neural hearing loss for the right ear and moderate sensori-neural hearing loss for the left ear.

Under Table VI, the hearing acuity shown constitutes Level I hearing in the right ear and Level I hearing in the left ear.  No exceptional pattern of hearing loss is shown in either ear.  See  38 C.F.R. § 4.86(a).  Under 38 C.F.R. § 4.85, Table VII, such hearing acuity warrants a zero percent rating under Code 6100. As the Veteran is already in receipt of a zero percent disability rating for hearing loss, this examination report's audiometric data does not provide a basis for assigning any increased disability rating for the Veteran's bilateral hearing loss.

In a statement received in December 2011, the Veteran contends that he is unable to understand conversations with others, often substituting obscure words or comments whenever he is unable to decipher what is being said.  He reiterated this concern in his substantive appeal and in his VA Form 646.  

Regarding the Veteran's assertions that his hearing impairment is more severe than reflected by the ratings currently assigned, the Board acknowledges that the Veteran is competent to testify as to symptoms he experiences, including the presence of hearing loss. See Barr v. Nicholson, 21 Vet. App. 303 (2007).  However, as a layperson, the Veteran is not competent to establish the level of his hearing disability on his own.  As is noted above, the rating of hearing loss disability involves the mechanical application of the rating schedule to findings of controlled audiometry, which here results in no increase in the ratings currently assigned.  See Lendenmann, 3 Vet. App. at 349.  As is explained above, the competent (medical) evidence of record does not show that an increased rating is warranted.

The Board has also considered whether referral for extraschedular consideration is indicated by the record.  In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extra-schedular disability rating is made.  38 C.F.R. § 3.321(b)(1).  

There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, there must be a comparison between the level of severity and symptomatology of the veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the veteran's disability picture is adequately contemplated by the rating schedule.  Id.  If not, the second step is to determine whether the veteran's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms."  Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization).  If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination concerning whether, to accord justice, the veteran's disability picture requires the assignment of an extra- schedular rating.  Id.  

In this case, the evidence does not show that the service-connected disability picture is exceptional or unusual.  Hearing loss is expressly contemplated by the rating schedule, which evaluates puretone threshold average and speech discrimination.   38 C.F.R. § 4.85, Diagnostic Code 6100.  Although the Veteran challenges the adequacy of the audiological evaluation, particularly it being conducted in a sound control room, the Board again notes that 38 C.F.R. § 4.86(b) remedies the problem and compensates for a pattern of hearing impairment that is an extreme handicap in the presence of any environmental noise.   See 64 Fed. Reg. 25203 (May 11, 1999).  

The Board further notes that the VA examination addresses the functional effects of the Veteran's hearing loss by noting that the Veteran's hearing is "good" with hearing aids and that he is able to "distinguish language."  See Martinak v. Nicholson¸21 Vet. App. 447, 455 (2007) (in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report).  The Board has considered this information in making all the pertinent determinations in this case, and the information does not present any basis for finding that referral for extraschedular consideration is warranted.   The record does not present such an "exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards."  38 C.F.R. § 3.321(b)(1).  

Additionally, there is also no evidence (or allegation) that the Veteran's bilateral hearing loss has rendered him unemployable or would render him unemployable if he were to seek employment.  Hence, the matter of entitlement to a total disability rating based on individual unemployability due to the Veteran's bilateral hearing loss is not raised by the record.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).


ORDER

A disability rating in excess of zero percent for bilateral hearing loss is not warranted.  The appeal is denied. 



____________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs