Citation Nr: 1339155	
Decision Date: 11/27/13    Archive Date: 12/13/13

DOCKET NO.  13-04 651	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to a compensable disability rating for bilateral hearing loss.


REPRESENTATION

Veteran represented by:  Texas Veterans Commission


ATTORNEY FOR THE BOARD

Rory Reyhan Layne, Associate Counsel







INTRODUCTION

The Veteran served on active duty from June 1975 to June 1978.

This appeal comes before the Board of Veterans' Appeals (Board) from an August 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. 

The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA.


FINDING OF FACT

The Veteran has level I hearing in both ears.


CONCLUSION OF LAW

The criteria for a compensable disability rating for bilateral hearing loss are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  

They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  

The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The record reflects that the Veteran was provided all required notice in a letter mailed in July 2011, prior to the initial adjudication of the claim. 

The Board also finds that the duty to assist has been met.  The Veteran was provided with a VA examination with respect to his claim in August 2011.  The Board finds that the report of the examination is adequate for rating purposes.  There is also no indication that the Veteran's disability has increased in severity since the August 2011 examination.  The Board concludes that no further examination is required.  The Veteran has not identified any treatment records or other outstanding evidence that could be obtained to substantiate the claim.  The Board is also unaware of any such evidence.






II.  Legal Criteria

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2013).  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 active service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013).  

The severity of a hearing loss disability is determined by comparisons of audiometric test results with specific criteria set forth in the Rating Schedule.  38 C.F.R. § 4.85.  Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz.  The audiometric test results are then translated into a numeric designation ranging from Level I to Level XI, in order to evaluate the degree of disability from bilateral service-connected defective hearing.  38 C.F.R. § 4.85.

The rating criteria also provide for rating exceptional patterns of hearing impairment.  See 38 C.F.R. § 4.86.  If the puretone threshold is greater than 55 decibels at each of four specified frequencies, 1000 Hertz, 2000 Hertz, 3000 Hertz and 4000 Hertz, VA must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  38 C.F.R. § 4.86(a).  If the puretone threshold is 30 decibels or less at 1000 Hertz and simultaneously 70 decibels or more at 2000 Hertz, VA must 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 highest numeral for consideration.  Each ear is evaluated separately.  38 C.F.R. § 4.86(b).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  

To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

III.  Analysis

In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2013) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability.  The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes.  Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability.  In this regard the Board notes that where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

The RO granted service connection for the Veteran's bilateral hearing loss, and a noncompensable rating was assigned effective from June 1978.  In June 2011, the Veteran filed the current claim for a compensable disability rating for his bilateral hearing loss.  In support of his claim, the Veteran contends that even after receiving his hearing aids he still experiences discomfort; and he feels "less than a man" because his family, friends, and peers perceive him as disabled.

The Veteran also submitted letters in support of his claim from his family, employer, and co-workers.  The statements show that prior to receiving his hearing aids the Veteran had difficulty hearing, and this resulted in reduced motivation and social interaction.  The statements also show that since receiving hearing aids his ability to communicate has improved and "his attitude has greatly improved."

In August 2011, the Veteran underwent a VA audiological examination to assess the severity of his hearing loss disability.  The authorized audiological evaluation revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
55
50
35
20
20
LEFT
20
20
15
20
20

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 94 percent in the left ear.  The average pure tone thresholds at 1,000, 2,000, 3,000, and 4,000 Hertz were 31.25 decibels in the right ear and 19 decibels in the left ear.  These findings demonstrate that under Table VI of the Rating Schedule, the Veteran has Level I hearing impairment in the right ear and Level I hearing impairment in the left ear.  He did not manifest an exceptional pattern of hearing impairment.  See 38 C.F.R. § 4.85, Table VI; see also 38 C.F.R. § 4.86(a).  Using Table VII, Level I hearing impairment in the right ear and Level I hearing impairment in the left ear results in a noncompensable evaluation for the Veteran's bilateral hearing impairment.  See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100.

The Board notes that the Court has held that, in addition to providing objective test results, a VA audiologist must fully describe the effects of a disability on occupational functioning and daily activities.  Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  With respect to daily activities and occupational functioning, the examiner noted that the Veteran's reported symptoms remained unchanged since his previous VA examination in October 2005; wherein he had noted difficulty "'hearing the [television] and conversation.'" 

Based on the record, the Board finds that the schedular criteria for a compensable rating have not been met.  As explained above, the examination results show that the Veteran does not have sufficient hearing impairment to warrant a compensable rating.

In reaching this determination, the Board has considered the statements regarding the Veteran's hearing loss disability.  The Veteran, his family, employer, and co-workers are certainly competent to report his observable symptoms.  However, to the extent that the Veteran has stated that his service-connected hearing loss warrants a higher evaluation and has provided lay statements describing the severity of his disability, the Board attaches greater probative weight to the clinical findings of a skilled, unbiased professional than to the lay statements from the Veteran, his family, employer, and co-worker.  Moreover, the assignment of disability evaluations based on hearing impairment is primarily based upon a mechanical application of the rating criteria, as explained and applied herein.

The Board has considered the doctrine of reasonable doubt in reaching this decision but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim.

IV.  Other Considerations

Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a compensable rating.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Board has also considered whether the Veteran's claim should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321.  In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).

In this case, the manifestations of the Veteran's disability are contemplated by the schedular criteria.  The Board acknowledges that the Veteran has difficulty hearing the television and conversation.  Never the less, his level of hearing impairment is specifically contemplated by the schedular criteria and the Board has no reason to believe that the average industrial impairment from his level of hearing impairment would be to a compensable degree.  Therefore, the Board has determined that referral of the claim for extra-schedular consideration is not in order.  


ORDER

A compensable disability rating for bilateral hearing loss is denied.



____________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs