Citation Nr: 1340152	
Decision Date: 12/05/13    Archive Date: 12/20/13

DOCKET NO.  12-12 892	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Entitlement to a compensable disability rating for bilateral hearing loss.



REPRESENTATION

Veteran represented by:	AMVETS



ATTORNEY FOR THE BOARD

A. Ruda





INTRODUCTION

The Veteran served on active duty from September 1966 to October 1970 and from May 1975 to November 1991.

The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California which denied an increased rating for bilateral hearing loss.

The Board has considered the decision of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki.  In that case, the Court held that a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation (whether in an original claim or as part of a claim for increased rating).  Rice v. Shinseki, 22 Vet. App. 447 (2009).  In VAOPGCPREC 6-96 it was also noted that if the Veteran asserts entitlement to a TDIU rating based in whole or in part on other service-connected disabilities which were not the subject of the appealed RO decision, the Board would lack jurisdiction over the TDIU claim except where appellate jurisdiction is assumed in order to grant a benefit, pursuant to 38 C.F.R. § 19.13(a).  VAOPGCPREC 6-96 (August 16, 1996).   Here, a claim of entitlement to TDIU was denied by the RO in August 2011; a notice of disagreement is not shown by the record. Further, the Veteran has not asserted that he is unemployable solely due to service-connected bilateral hearing loss. Accordingly, the issue of entitlement to TDIU is not before the Board at this time.


FINDING OF FACT

During the pendency of this appeal, the Veteran's hearing loss has been manifested by level I hearing acuity in the right ear and level I hearing acuity in the left ear.


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. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented, in part, at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.

Duty to Notify

For a claim of a compensable rating for bilateral hearing loss under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. 

Also, the VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). 

In a claim for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). 

The VCAA notice, as required by 38 U.S.C.A. § 5103(a); must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). 
The RO provided pre-adjudication VCAA notice by letter, dated in July 2010.  The notice included the type of evidence needed to substantiate the claim for increase, namely, evidence that the severity of the disability has increased. 

The Veteran was notified that VA would obtain service treatment records, VA records, and records from other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non-Federal records on his behalf.  The notice included the provisions for the effective date of a claim and for the degree of disability assignable.

As for content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (38 C.F.R. § 3.159 notice); of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim); and of Vazquez-Flores v. Peake, 580 F.3d 1270 (Fed. Cir. 2009) (evidence demonstrating a worsening or increase in severity of a disability and the effect that worsening has on employment). 

Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim.  The RO has obtained service treatment records, VA records and provided the Veteran VA audiometric examinations in July 2010 and March 2012. 

The July 2010 VA audiometric examination yielded invalid auditory thresholds and no data was provided.  The VA examiner opined "significant differences noted in ascending and descending threshold searching.  Suspect at least a high frequency hearing loss but unable to quantify results due to variability in threshold search.  Word recognition scores are also considered invalid.  Today's testing results are considered invalid for rating purposes."  However, the March 2012 audiometric examination produced valid audiometry results contemplated by the rating criteria. 

The March 2012 VA examination report include a review of the Veteran's medical history, an interview and an examination of the Veteran, as well as sufficient findings to rate the disability.  Furthermore, the impact of the Veteran's hearing loss on his occupational capacity and daily activities was addressed by the examining clinician, pursuant to Martinak v. Nicholson, 21 Vet. App. 447 (2007).  Therefore, the Board concludes that the March 2012 examination is adequate.  38 C.F.R. § 4.2; see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).

As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist.

Increased Rating for Bilateral Hearing Loss 

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 
Where there is a question as to which of two ratings shall be applied, the higher rating 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.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 C.F.R. § 4.3.

The Veteran's entire history is to be considered when making disability evaluations.  See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

The Veteran is currently in receipt of a noncompensable (0 percent) evaluation for his service-connected bilateral hearing loss under DC 6100.  38 C.F.R. §§ 4.85, 4.86.  He asserts that his bilateral hearing loss is more severe than indicated by the current noncompensable rating.  In support of his claim, the Veteran has reported difficulty understanding people, especially during interviews and social gatherings, and ringing in his ears.

VA regulations provide a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  See 38 C.F.R. § 4.85 (2013).  Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. Id.  

An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test.  VA audiometric examinations for rating purposes are to be conducted without the use of hearing aids.  38 C.F.R. § 4.85(a). 

On VA audiological evaluation in March 2012, pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
25
30
60
60
43.75
LEFT
30
45
60
55
47.5

Speech audiometry revealed speech recognition ability of 96 percent bilaterally.  The examiner gave a diagnosis of bilateral sensorineural hearing loss.  The report contains the Veteran's complaint of difficulty hearing others.

Applying the March 2012 VA audiology examination findings to Table VI, the Veteran rates a Roman Numeral designation of I for the right ear and I for the left ear.  Applying those Roman Numeral designations to Table VII results in a noncompensable rating.

The record also contains July 2010 and October 2010 VA examinations, but these records do not measure the Veteran's hearing loss.  In other words, they do not contain sufficient information necessary to properly rate the Veteran's hearing loss (i.e. puretone thresholds and Maryland CNC speech recognition scores)

Based upon the March 2012 examination report, the Board finds the Veteran's hearing loss does not represent an exceptional pattern of hearing impairment, as the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is not above 55 decibels, and the puretone threshold is not 70 decibels or more at 2000 Hertz at any time during the appeal period.  Also, the puretone thresholds were not 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz.  Therefore, the Board must use Table VI to evaluate the Veteran's compensation rating.  See 38 C.F.R. § 4.86.

The Board has carefully considered the Veteran's assertions and in no way discounts the Veteran's asserted difficulties or his assertions that his bilateral hearing loss should be rated higher.  However, it must be emphasized that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained.  

The Board notes that, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that, relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  The March 2012 examiner indicated that the Veteran reported his hearing loss impacted ordinary conditions of daily life, including his ability to work by having difficulty hearing others.  This indicates that the examiner did elicit information from the Veteran concerning the functional effects of his disability.  That is all the applicable regulatory provisions require. See 38 C.F.R. §§ 4.1, 4.2, 4.10.  The Board finds that the diagnostic code takes into consideration these factors.

The Board also finds that there is no showing that the Veteran's hearing loss has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis.  See 38 C.F.R. § 3.321(b) (1) (2012).  The Veteran's reported symptoms of difficulty in understanding people and noises are contemplated by the rating criteria.  The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing.  The symptoms of his disability have been accurately reflected by the schedular criteria.  Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted.  See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).

Based on the evidence and the application of the rating criteria, the Board finds that the preponderance of the evidence is against the assignment of a compensable evaluation for the Veteran's service-connected hearing loss.  As such, the appeal must be denied.





ORDER

Entitlement to a compensable disability rating for bilateral hearing loss is denied.



______________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs