Citation Nr: 1340192 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 08-11 968 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from April 1971 to January 1973. This matter comes before the Board of Veterans' Appeals (Board) from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In February 2012 the Board remanded this matter for additional development, including provision to the Veteran of a new VA examination. No further action to ensure compliance with the Board's remand directives is required. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's bilateral hearing loss disability has been manifested by level I hearing in each ear throughout the appeal period. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). However, in the present matter, the claim for a higher disability rating for bilateral hearing loss arises from the initial grant of service connection. As this is an appeal arising from the initial grant of service connection, the notice that was provided to the Veteran in April 2008 before service connection was granted was legally sufficient and no further notice under the VCAA is necessary. See Hartman v. Nicholson, 483 F.3d 1311 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). All pertinent records from all relevant sources identified by the Veteran, and for which he authorized VA to request, have been obtained. VA medical records have also been associated with the claims file. The Veteran was also afforded multiple VA examinations, and this evidence is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Further, in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the United States Court of Appeals for Veterans Claims (Court), noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10. The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. In this case, the March 2012 VA examiner who conducted the audiology evaluations specifically addressed the effect of the Veteran's hearing loss on his daily activities and his employment. Thus, the Board finds that the examination was adequate. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the claim herein addressed on the merits, and has not argued that any error or deficiency in the accomplishment of the duties to notify and assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). In view of the forgoing, the Board finds that VA has satisfied its duties to notify and assist under the governing law and regulation. The Board will therefore review the merits of the Veteran's claim, de novo. Merits In a rating decision in June 2007, the RO granted service connection for bilateral hearing loss and assigned a noncompensable (0 percent) rating effective June 14, 2005. The Veteran has appealed the assigned rating. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Rating Schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on puretone thresholds and controlled speech discrimination (Maryland CNC) testing. Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85. The "puretone threshold average" as used in Table VI, is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85(d). 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). Where 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. An exceptional pattern of hearing impairment occurs when the puretone thresholds in each of the four frequencies 1000, 2000, 3000, and 4000 Hertz are 55 decibels or greater; or when the puretone threshold at 1000 Hertz is 30 decibels or less, and the threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86(a), (b). Facts and Analysis As stated before, in a rating decision dated in June 2007 the RO granted service connection for bilateral hearing loss and assigned a noncompensable (0 percent) rating effective June 14, 2005. There is no clinical medical evidence related to hearing problems in the claims file, after the effective date of service connection, until April 2007. On VA audiological examination in April 2007, puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz were 15, 15, 20, and 35, respectively in the RIGHT ear; and 15, 20, 65, and 65, respectively, in the LEFT ear; for an average of 21.25 decibels in the RIGHT ear, and 41.25 decibels in the LEFT ear. Speech recognition scores were 96 percent in the right ear and 92 percent in the left ear. These findings correspond to Level I hearing in each ear, which equates to a noncompensable rating. 38 C.F.R. § 4.85, Tables VI and VII. Evaluation under the provisions of 38 C.F.R. § 4.86 is not warranted as the criteria for an exceptional rating are not shown. There is no basis for a compensable rating based on this evidence. Lendenmann, 3 Vet. App. 345, 349 (hearing evaluations are performed by mechanically applying the rating criteria to certified test results). On VA audiological examination in February 2010, puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz were 15, 15, 35, and 50, respectively, in the RIGHT ear; and 15, 20, 70, and 70, respectively, in the LEFT ear; for an average of 28.75 decibels in the RIGHT ear, and 43.75 decibels in the LEFT ear. Speech recognition scores were 96 percent in the right ear and 88 percent in the left ear. These findings correspond to Level I hearing in the right ear and Level II hearing in the left ear, which equates to a noncompensable rating. 38 C.F.R. § 4.85, Tables VI and VII. Evaluation under the provisions of 38 C.F.R. § 4.86 is not warranted as the criteria for an exceptional rating are not shown. There is no basis for a compensable rating based on this evidence. Lendenmann, 3 Vet. App. 345, 349. On VA audiological examination in February 2012, puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz were 15, 15, 35, and 55, respectively, in the RIGHT ear; and 15, 15, 70, and 65, respectively, in the LEFT ear; for an average of 30 decibels in the RIGHT ear, and 41.25 decibels in the LEFT ear. Speech recognition scores were 96 percent in the right ear and 100 percent in the left ear. These findings correspond to Level I hearing in both ears, which equates to a noncompensable rating. 38 C.F.R. § 4.85, Tables VI and VII. Evaluation under the provisions of 38 C.F.R. § 4.86 is not warranted as the criteria for an exceptional rating are not shown. There is no basis for a compensable rating based on this evidence. Lendenmann, 3 Vet. App. 345, 349. Accordingly, and based on the medical evidence of record (see Lendenmann), the Board finds that the criteria for an initial noncompensable rating are not met at any time during the appeal period; and a staged rating is in turn not warranted. Fenderson, 12 Vet. App. 119, 126-27. Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service- connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service- connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for higher ratings for more severe symptoms of hearing loss. As the disability picture is contemplated by the Rating Schedule, the assigned schedular rating is adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). TDIU consideration In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that in an initial rating claim, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is part for a higher rating claim when such claim is raised by the record. The Veteran does not allege, and the evidence does not show, that his hearing loss alone is of sufficient severity to produce unemployability. Thus, the Board finds that a claim for a TDIU is not raised by the record. ORDER An initial compensable rating for bilateral hearing loss is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs