Citation Nr: 1340776	
Decision Date: 12/11/13    Archive Date: 12/20/13

DOCKET NO.  08-21 553	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

1.  Entitlement to an initial compensable evaluation for bilateral hearing loss prior to September 28, 2007.

2.  Entitlement to an initial evaluation in excess of 10 percent for bilateral hearing loss after September 28, 2007.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Siobhan Brogdon, Counsel



INTRODUCTION

The Veteran served on active duty from October 1965 to September 1967.

This appeal initially came before the Department of Veterans Affairs (VA) Board of Veterans' Appeals from an August 2007 rating decision of the VA Regional Office (RO) in Winston-Salem, North Carolina that, among other things, granted service connection for bilateral hearing loss.  The Veteran appealed for a higher initial rating.

During the pendency of the appeal, the noncompensable evaluation for bilateral hearing loss was increased to 10 percent, effective from September 28, 2007, by rating action dated in March 2010.  Although a higher rating has been granted, the issue remains in appellate status as the maximum schedular rating has not been assigned from the date of claim.  See AB v. Brown, 6 Vet. App. 35 (1993).  This is reflected by a separate issue on the title page of this decision. 

Following review of the record, the appeal of entitlement to an initial evaluation in excess of 10 percent for bilateral hearing loss after September 28, 2007 is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.  VA will notify the appellant if further action is required.

The Veteran's Virtual VA electronic claims file associated with the paper record has been reviewed in conjunction with the disposition of the issues on appeal.  The representative's informal hearing presentation is located in this file.


FINDING OF FACT

Prior to September 28, 2007, bilateral hearing loss was manifested by no more than Level I hearing acuity in the right ear and no more than Level IV in the left ear. 



CONCLUSION OF LAW

The criteria for an initial compensable evaluation for bilateral hearing loss prior to September 28, 2007 are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran asserts that he is entitled to a higher initial disability evaluation for bilateral hearing loss disability.

Veterans Claims Assistance Act of 2000 (VCAA)

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 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).  The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met in this instance regarding the Veteran's claim.  There is no issue as to providing an appropriate application form or the completeness of the application.  VA appropriately notified the Veteran of the information and evidence needed to substantiate and complete the claim in December 2006, May 2007, and thereafter.

VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claim of entitlement to a higher initial rating for bilateral hearing loss, to include affording him VA examination.  The examination is adequate to render a determination as to the issue on appeal.  The Board finds that there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c).  As such, the claim is ready to be considered on the merits.


Law and Regulations

Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Separate diagnostic codes identify the various disabilities.

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 pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second, with 11 auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85 (2013).

In addition to the hearing loss criteria above, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa [C.F.R. § 4.85], whichever results in the higher numeral. 38 C.F.R. § 4.86(a) (2013).

When the pure tone 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) (2013).

Factual Background

A claim for service connection of bilateral hearing loss was received in November 2006.


Factual Background and Legal Analysis

Pursuant to the filing of his claim, the Veteran was afforded an audiology evaluation for VA in June 2007.  An audiogram utilizing air conduction study disclosed the following puretone thresholds in the right and left ears:




HERTZ




1000
2000
3000
4000
RIGHT

40
55
60
70
LEFT

40
55
65
30

The puretone threshold averages were 56 and 48 for the right and left ears, respectively.  

When using bone conduction study, the following puretone thresholds in the right and left ears were obtained:




HERTZ




1000
2000
3000
4000
RIGHT

30
55
65
60
LEFT

30
55
65
65

The puretone threshold averages were 53 and 54 for the right and left ears, respectively using bone conduction study.  

Speech discrimination scores were 100 percent in the right ear and 80 percent in the left ear.  An assessment of mild to moderate sensorineural hearing loss bilaterally was rendered.  The examiner indicated that the evaluation utilized Maryland CNC testing.  

The June 2007 air conduction evaluation thus reflects a puretone threshold average of 56 decibels in the right ear with a speech discrimination score of 100 percent that equates to an auditory acuity numeric designation of Level I hearing.  The left ear reflects a puretone threshold average of 48 decibels with a speech discrimination score of 80 percent that corresponds to an auditory acuity numeric designation of Level III hearing according to VA rating criteria.  Under Table VII of 38 C.F.R. § 4.85, hearing impairment manifested by Level I hearing acuity in the right ear and Level III hearing acuity in the left ear comports with the criteria for a noncompensable disability rating.

The June 2007 audiogram utilizing bone conduction study reflects a puretone threshold average of 53 decibels in the right ear with a speech discrimination score of 100 percent that equates to an auditory acuity numeric designation of Level I hearing.  The left ear reflects a puretone threshold average of 54 decibels with a speech discrimination score of 80 percent that corresponds to an auditory acuity numeric designation of Level IV hearing according to VA rating criteria.  Under Table VII of 38 C.F.R. § 4.85, hearing impairment manifested by Level I hearing acuity in the right ear and Level IV hearing acuity in the left ear comports with the criteria for a noncompensable disability rating.

Additionally, right and left ear hearing impairment shown on these audiological evaluations would not qualify as an exceptional pattern of hearing impairment for VA compensation purposes.  This is because pure tone thresholds at each of the four specified frequencies were not all 55 decibels or more, nor were pure tone thresholds 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. See 38 C.F.R. § 4.86.  

The Board has carefully considered the Veteran and his representative's contentions attesting to more severe defective hearing since the inception of the claim.  However, the clinical record does not support a basis to find that hearing loss approximated the criteria for a higher rating prior to the September 28, 2007 audiometric evaluation, as clarified and substantiated by a February 2010 audiogram.  The Board points out that a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed and is not amenable to subjective interpretation. See Lendenmann v. Principi, 3 Vet. App. 345.  Under the rating schedule, the severity of the Veteran's hearing loss prior to September 28, 2007, as demonstrated by the June 2007 audiometric evaluation, was no more than noncompensably disabling since the claim received in November 2006. See Hart v. Mansfield, 21 Vet. App. 505 (2007) and Fenderson v. West, 12 Vet. App. 119 (1999).

Finally, the record does not establish that the rating criteria are inadequate for evaluating the Veteran's service-connected bilateral hearing loss disability prior to September 28, 2007.  The evidence shows that the relative manifestations and the effects of the disability have been fully considered and are contemplated by the rating schedule.  Therefore, referral for an extraschedular rating is not necessary.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).

In sum, the Board finds that the evidence does not support a rating higher than zero percent for bilateral hearing loss prior to September 28, 2007.  The preponderance of the evidence is against this aspect of the claim and it is denied. 38 U.S.C.A. § 5107(b); Gilbert v Derwinski, 1 Vet. App. 49 (1990).


ORDER

An initial compensable evaluation for bilateral hearing loss prior to September 28, 2007 is denied.


REMAND

Review of the record discloses that the Veteran's hearing was most recently evaluated for VA compensation and pension purposes in February 2010.  Since it has been almost four years since the appellant was examined, a current audiology evaluation would be useful in ascertaining current disability.

Additionally, review of the record indicates that the Veteran appears to receive VA outpatient treatment for hearing loss.  The most recent progress notes in this regard date through September 2009.  The Board is thus put on notice as the existence of additional VA clinical evidence that should be requested and associated with the other evidence on file. See Bell v. Derwinski, 2 Vet. App. 611.  Therefore, relevant VA records dating from October 2009 through the present should be requested and associated with the claims folder and/or Virtual VA.

Accordingly, the case is REMANDED for the following actions:

1.  Request relevant VA outpatient records from October 2009 through the present and associate with the claims folder (to include Virtual VA).

2.  Schedule the Veteran for a VA audiology examination to ascertain the current severity of hearing loss disability.  The examination should be conducted in accordance with 38 C.F.R. § 4.85.

3.  After taking any further development deemed appropriate, re-adjudicate the issue.  If the benefit is not granted, provide the appellant and his representative a supplemental statement of the case and afford an opportunity to respond before the case is returned to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other 

appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).


_________________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs