Citation Nr: 1339055	
Decision Date: 11/26/13    Archive Date: 12/06/13

DOCKET NO.  12-23 940	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUE

Entitlement to an initial compensable evaluation for bilateral hearing loss.  


REPRESENTATION

Appellant represented by:	Calvin Hansen, Esq.


ATTORNEY FOR THE BOARD

Joseph R. Keselyak, Counsel



INTRODUCTION

The Veteran served on active duty from January 1956 to June 1963.

This matter comes to the Board of Veterans' Appeals (Board) from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. 

In August 2013 this matter was last before the Board, at which time it was remanded for further development.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

Throughout the applicable period, the Veteran has had hearing loss in the right ear with a Numeric Designation of II and hearing loss in the left ear with a Numeric Designation of III, at worst.


CONCLUSION OF LAW

The criteria for an initial compensable rating for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.385, 4.1, 4.7, 4.85 Diagnostic Code 6100, Tables VI, VIa, VII, 4.86 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

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 not of record that is necessary to substantiate the claim.  In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2011); 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). Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

In a case such as this, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical 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.  Id.; Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements.  Goodwin v. Peake, 22 Vet. App. 128 (2008).  The Veteran has not alleged any prejudice; thus, that burden has not been met in this case.

Nevertheless, the Board notes that VA has fully complied with the notice provisions of 38 U.S.C.A. § 5103(a).  In a letter dated in July 2010, the Veteran was advised of how to substantiate his claim for service connection, his and VA's respective duties in developing the claim and as to the disability rating and effective date elements of his claim.

VA has obtained the Veteran's service treatment records and VA medical records, assisted the Veteran in obtaining evidence, and afforded the Veteran audiologic examinations.  All known and available records relevant to the issue adjudicated on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise.

The United States Court of Appeals for Veterans Claims (hereinafter "the Court ") has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA examinations obtained in this case is adequate.  They are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints, symptoms and history.  As the examination reports ultimately provide sufficient information such that the Board can render an informed determination, they are adequate.  Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue addressed in this decision has been met.  38 C.F.R. § 3.159(c)(4).

VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time.

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013).  Separate rating codes identify the various disabilities. 38 C.F.R. Part 4.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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.  Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran.  38 C.F.R. § 4.3. The VA schedule of ratings will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  38 C.F.R. Section 3.321(b)(1) provides that, in exceptional circumstances, where the schedular evaluations are found to be inadequate, the veteran may be awarded a rating higher than that encompassed by the schedular criteria.  According to the regulation, an extraschedular disability rating is warranted upon a finding that "the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards."  Id.

An appeal from the initial assignment of a disability rating requires consideration of the entire time period involved, and contemplates "staged ratings" where warranted.  See Fenderson v. West, 12 Vet. App. 119 (1999).
Evaluations of hearing impairment range from zero to 100 percent based on organic impairment of hearing acuity.  Auditory acuity is gauged by examining the results of controlled speech discrimination tests, together with the results of pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz.  To evaluate the degree of disability, the rating schedule establishes 11 auditory acuity levels ranging from level I, for essentially normal acuity, through level XI, for profound deafness.  Tables VI (or VIa) and VII are used to calculate the rating to be assigned. 38 C.F.R. § 4.85.

Under 38 C.F.R. § 4.86, when the pure tone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral.  38 C.F.R. § 4.86(a).  Additionally, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral.  Thereafter, that numeral will be elevated to the next higher Roman numeral.  Each ear is to be separately evaluated. 38 C.F.R. § 4.86(b).

Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

In July 2010, the Veteran filed his application to reopen a claim of entitlement to service connection for bilateral hearing loss.  In furtherance of assisting the Veteran to substantiate his claim, the RO obtained records from ENT Nebraska dated in June and August 2010.  The records document an assessment of moderate to severe sensorineural hearing loss and contain electroacoustic data relating to the calibration of hearing aids.  They contain an audiogram dated in June 2010, showing pure tone thresholds, in decibels, as follows:





HERTZ



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

Pure tone averages were 50 for the right ear and 57.5 for the left ear.  Speech audiometry showed 96 percent and 88 percent discrimination in the right and left ears, respectively.  

In June 2011 he was afforded a VA audiologic examination.  On VA audiological testing pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
25
30
40
55
LEFT
25
30
40
60
75

Pure tone averages were 37.5 for the right ear and 51.25 for the left ear.  Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 96 percent in the left ear.  

Of record are October 2011 records from The Hearing Clinic.  The records reflect that the Veteran reported difficulty understanding conversation in the presence of background noise, even with the use of hearing aids.  Audiograms showed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
25
30
45
60
LEFT
30
30
35
70
80

Pure tone averages were 40 for the right ear and 53.75 for the left ear.  Speech audiometry (Maryland CNC) revealed speech recognition ability of 92 percent in the right ear and of 88 percent in the left ear.  

Of record is a January 2013 VA Audiological Evaluation (VA Form 10-2364) that was obtained and associated with the claims files in accordance with the Board's August 2013 remand directives.  Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
25
30
40
60
LEFT
25
30
40
60
75

Pure tone averages were 38.75 for the right ear and 51.25 for the left ear.  Speech audiometry was obtained using Central Institute for the Deaf (CID) W-22 word lists, but not a Maryland CNC test.  See 38 C.F.R. § 4.85 (2013) (requiring that an examination for hearing impairment for VA purposes be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and puretone audiometry test).

In February 2013 the Veteran was afforded another VA audiologic examination.  On VA audiological testing pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
25
30
40
60
LEFT
25
30
40
60
75

Pure tone averages were 39 for the right ear and 51 for the left ear.  Speech audiometry revealed speech recognition ability of 86 percent in the right ear and of 88 percent in the left ear.  The examination report documents that the Veteran's hearing loss did not impact the ordinary conditions of daily life, including his ability to work.  See Martinak v. Nicholson, 21 Vet. App. 447, 454-55 (2007).

A compensable initial valuation for the Veteran's bilateral hearing loss is not warranted under the circumstances.  The January 2013 VA audiometrics cannot be utilized to substantiate the present claim as the speech discrimination scores were not obtained using a Maryland CNC test, but rather a CID W-22 word list.  38 C.F.R. § 4.85.  The June 2010 private audiometrics yield Numeric Designations for the Veteran's right and left ear of I and III, respectively.  The June 2011 VA audiometrics yield Numeric Designations for the Veteran's right and left ear hearing loss of II and I, respectively.  The October 2011 private audiometrics yield Numeric Designations for the right and left ear of I and III, respectively.  The February 2013 VA audiometrics result in Numeric Designations for the right and left ear of II and II, respectively.  38 C.F.R. § 4.85, Table VI.  These numerical designations, when applied to 38 C.F.R. § 4.85 Table VII, yield a non-compensable evaluation.  This has been true throughout the course of this appeal.  Accordingly, a compensable evaluation is not warranted for any period of time that is covered by this claim.  Fenderson v. West, 12 Vet. App. 119 (1999).  

The results of the audiologic evaluations do not require consideration under the regulation pertaining to exceptional patterns of hearing impairment.  38 C.F.R. § 4.86.  None of the above-outlined audiometrics show puretone thresholds in the four specified frequencies at 55 dB or more and no puretone thresholds measure 70 dB or more at 2000 Hz.

The Board has also considered referral for extraschedular consideration.  According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1) (2013).  An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards.  See Fanning v. Brown, 4 Vet. App. 225, 229 (1993).
Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, 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 Board must determine whether the Veteran's 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 Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected condition is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's bilateral hearing loss with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology.  The criteria particularly contemplate his specific symptoms of having difficulty hearing and understanding conversations, and therefore address the severity of the condition.

Even if the Board were to find that step one of Thun had been satisfied, extraschedular referral would still not be warranted because the Board also finds that Thun step two is not satisfied.  See Johnson v. Shinseki, 26 Vet. App. 237, 247 (2013) (en banc) (error in Thun step one analysis is harmless were Board makes an adequate finding that Thun step two is not satisfied).  The Veteran's bilateral hearing loss does not present an exceptional disability picture with related factors such as marked interference with employment or frequent hospitalization.  38 C.F.R. § 3.321(b)(1).  The Veteran has not been hospitalized for this condition.  As to employment, no impairment thereof has been found as related to bilateral hearing loss; indeed, recent VA examination found no effects on employment or the everyday conditions of life.  Thus, even if his disability picture was exceptional or unusual, referral would not be warranted.

In short, there is nothing in the record to indicate that the service-connected disability on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular rating.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired).  The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.


ORDER

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



____________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs