Citation Nr: 1339924	
Decision Date: 12/04/13    Archive Date: 12/18/13

DOCKET NO.  13-23 808	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an initial compensable disability evaluation for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Sean A. Ravin, Esq.


ATTORNEY FOR THE BOARD

C. Jones, Associate Counsel


INTRODUCTION

The Veteran had active military service from October 1964 to June 1968.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service-connection for bilateral hearing loss and awarded a noncompensable rating effective September 15, 2006.  The Veteran appealed the assigned rating.

In a July 2013 statement, it was asserted that the Veteran's hearing loss had worsened since his last examination in January 2011.  However, subsequent to that communication, in September 2013, another VA audiologic examination was provided.  Therefore, the evidence of record accurately reflects the current level of severity of the Veteran's hearing loss disability.


FINDING OF FACT

Throughout the rating period on appeal, the Veteran's bilateral hearing loss has been objectively shown to be manifested by no more than bilateral Level I hearing acuity.


CONCLUSION OF LAW

The criteria for an initial compensable evaluation for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R §§ 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

In cases 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.  Dingess, 19 Vet. App. at 473; 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).  There has been no allegation of such error in this case.

VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1).  VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim.  38 C.F.R. § 3.159(c)(4).

Service treatment records are associated with claims file.  All post-service treatment records and reports identified by the Veteran have also been obtained.  The Veteran has not identified any additional records that should be obtained prior to a Board decision.  Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied.  

The Veteran has been afforded VA audiological evaluations addressing his service-connected bilateral hearing loss.  These examinations are adequate for the purposes of the instant matter adjudicated herein, as they were based on consideration of the Veteran's pertinent medical history and described the current severity of the Veteran's disability.  See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 

Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.

Analysis

Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013).  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. 

Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the current severity of the disorder.  Fenderson v. West, 12 Vet. App. 119 (1999).  In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it is possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007).

Evaluations of bilateral defective hearing range from non-compensable 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 measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz).  To evaluate the degree of disability from bilateral service-connected defective hearing, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness.  38 C.F.R. §§ 4.85, Tables VI and VII, Diagnostic Codes 6100 (2013).  Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing.  See Lendenman v. Principi, 3 Vet. App. 345 (1992).

An exceptional pattern of hearing impairment occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more.  In that situation, 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.  38 C.F.R. § 4.86(a).  Further, when the average 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 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 higher Roman numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(b).

The evidence of record provides that the Veteran had three audiological evaluations in connection with his hearing loss disability.

At a January 2009 VA audiological evaluation, the Veteran exhibited pure tone thresholds, in decibels as follows:



    Hz 



1000
2000
3000
4000
RIGHT
15
15
45
45
LEFT
15
15
20
50

Speech audiometry revealed speech recognition ability of 96 percent in both the right and left ears.  The Veteran was diagnosed with normal to moderate bilateral sensorineural hearing loss disability.  The average puretone threshold was 30 for the right ear and 25 for the left ear.

Applying the findings from the January 2009 examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level I hearing loss in both the left and right ears.  Where hearing loss is at Level I in both ears, a 0 percent rating is assigned under Table VII.  38 C.F.R. § 4.85.

A January 2011 VA audiological evaluation notes that the Veteran exhibited pure tone thresholds, in decibels, as follows:



    Hz 



1000
2000
3000
4000
RIGHT
15
15
55
55
LEFT
20
20
20
55

Speech audiometry revealed speech recognition ability of 94 percent in both the right and left ears.  The average puretone threshold was 35 for the right ear and 28.75 for the left ear.

Applying the findings from the January 2011 examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level I hearing loss in both the left and right ears.  Where hearing loss is at Level I in both ears, a 0 percent rating is assigned under Table VII.  38 C.F.R. § 4.85.

The Veteran was afforded another VA audiological evaluation in September 2013.  The evaluation notes that the Veteran exhibited pure tone thresholds, in decibels, as follows:






    Hz 



1000
2000
3000
4000
RIGHT
10
20
55
55
LEFT
15
20
25
55

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 98 percent in the left ear.  The average puretone threshold was 35 for the right ear and 29 for the left ear.

Applying the findings from the September 2013 examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level I hearing loss in both the left and right ears.  Where hearing loss is at Level I in both ears, a 0 percent rating is assigned under Table VII.  38 C.F.R. § 4.85.

The Board has reviewed the probative evidence of record and finds that the Veteran's bilateral hearing loss does not warrant a compensable evaluation.  The Veteran's hearing disability has not been shown to be manifested by an exceptional pattern of hearing impairment.  38 C.F.R. § 4.86 (2013).

The Board acknowledges the Veteran's assertion that his disability should be rated at 10 percent.  However, the examination records reflect no more than Level I auditory acuity in either ear at any point after service connection was established.  Such findings do not support assignment of a compensable evaluation.  The Veteran's audiometric findings fall squarely within the criteria for a noncompensable evaluation under the provisions of 38 C.F.R. § 4.85, Diagnostic Code 6100.  Therefore, the Board concludes that a compensable schedular evaluation is not warranted for the Veteran's bilateral hearing loss at any time during the pendency of this appeal.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities."  38 C.F.R. § 3.321(b)(1) (2013).

An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture.  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008). 

If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization.  Id. at 115-116.  When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating.  Otherwise, the schedular evaluation is adequate, and referral is not required.  38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116.

In this case, the schedular evaluation is not inadequate.  The diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder.  As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order.


ORDER

An initial compensable evaluation for the Veteran's bilateral hearing loss disability is denied.



____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs