Citation Nr: 1340909 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 10-29 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a compensable initial disability rating for bilateral hearing loss. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Marne Marotta, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1974 to December 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In May 2012, the Veteran presented testimony before the undersigned Veterans Law Judge at a Board hearing held at the RO. A copy of the transcript is of record. The Board previously remanded this case in August 2011 and July 2013. A review of the record indicates substantial compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT Not more than a level I hearing impairment of either ear is shown throughout the period on appeal. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist VA has duties 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). Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for bilateral hearing loss. Once service connection is granted and the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. VA has obtained the Veteran's service treatment records and VA medical records identified by the Veteran as relevant to the appeal. VA provided the Veteran with audiological examinations in December 2008 and September 2013. The examiners reviewed the Veteran's claims file and recorded the Veteran's reported medical history and clinical findings from examination. The Board finds that the audiological examinations sufficiently considered the Veteran's reports of the functional effects of the bilateral hearing loss. The Veteran has not identified any other relevant evidence that has not been requested or obtained. The Board finds that VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on his claim at this time. II. Initial Ratings Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify various disabilities. 38 C.F.R. Part 4. When 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). III. Rating Criteria for Bilateral Hearing Loss A January 2009 rating decision established service connection at a noncompensable (0 percent) level under Diagnostic Code (DC) 6100. The Veteran has appealed the initial rating assigned, contending that the 0 percent rating is inadequate for his level of impairment. Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The regulations set forth eleven auditory acuity levels in Table VI, designated from Roman numerals I to XI, according to degree of hearing impairment from normal acuity through profound deafness. 38 C.F.R. § 4.85. The appropriate auditory acuity level is determined based on a combination of the percent of speech discrimination and the puretone threshold average. When an audiologist certifies that use of the speech discrimination test is not appropriate, then Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used alone to determine the auditory acuity level. In exceptional cases, where the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, an evaluation can be based either on Table VI or Table VIa, whichever results in a higher evaluation. 38 C.F.R. § 4.86(a). Similarly, when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa, whichever results in the higher numeral, and that numeral will then be elevated to the next higher Roman numeral. Once an acuity level is established for each ear, Table VII, "Percentage Evaluations for Hearing Impairment" is used to determine the appropriate disability evaluation. The appropriate evaluation is determined based on a combination of the levels of hearing impairment established for each ear. IV. Analysis Here, the Veteran had audiological evaluations in December 2008 and September 2013. The December 2008 evaluation noted puretone thresholds, in decibels, at 1000, 2000, 3000, and 4000 Hertz, respectively, of 30, 30, 30, and 20 in the right ear, and 25, 20, 35, and 40 in the left ear. The puretone threshold averages in decibels were 27.5 and 30 in the right and left ears, respectively. Speech discrimination scores were 94 percent and 92 percent in the right and left ears, respectively. The Veteran reported that he had difficulty hearing and understanding in group situations. The recorded scores correlate to auditory acuity level I for each ear under Table VI; a noncompensable rating is warranted. The September 2013 evaluation noted puretone thresholds, in decibels, at 1000, 2000, 3000, and 4000 Hertz, respectively, of 25, 5, 25, and 15 in the right ear, and 20, 20, 25, and 35 in the left ear. The puretone threshold averages were 18 and 25 in the right and left ear, respectively. Speech discrimination scores were 96 percent and 94 percent in the right and left ears, respectively. The Veteran indicated that his hearing loss does not impact his daily life "too much," and noted difficulty having phone conversations, watching television and hearing his mother. The recorded scores correlate to auditory acuity level I for each ear under Table VI; a noncompensable rating is warranted. The medical evidence shows no basis for the assignment of a compensable schedular rating for the Veteran's bilateral hearing loss under DC 6100 at any point during the pendency of this appeal. Fenderson, 12 Vet. App. at 126. There is otherwise no showing of any exceptional hearing impairment as set forth in 38 C.F.R. § 4.86. The Board has considered the Veteran's statements regarding the severity of his hearing impairment, which are credible and probative, but, as noted above, disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann, 3 Vet. App. 345. The audiological data presented do not permit the assignment of a compensable schedular at any point in time. IV. Other Considerations In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the U.S. Court of Appeals for Veterans Claims (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. Here, during his December 2008 and September 2013 VA audiological evaluations, the Veteran reported that he had difficulty hearing in group settings and that his hearing did not impact his daily life too much. The Veteran indicated that he has difficulty hearing phone conversations, the television and his mother. The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The symptoms associated with the Veteran's bilateral hearing loss (i.e., difficulty hearing and understanding speech) are contemplated by the rating criteria and the medical evidence fails to show anything unique or unusual about the Veteran's bilateral hearing loss that would render the schedular criteria inadequate. The Veteran's main complaint is reduced hearing acuity, which is precisely what is contemplated in the rating assigned. The VA examiners specifically noted the Veteran's complaints regarding the effect of hearing loss on occupational function and on daily activities. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). As the available schedular criteria for this service-connected disability are adequate, referral for consideration of an extraschedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008). The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) has been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Here, there is no evidence of unemployability due to the Veteran's service-connected bilateral hearing loss and further consideration of TDIU is not warranted. As a preponderance of the evidence is against the Veteran's claim, his appeal for a compensable initial rating for bilateral hearing loss must be denied without application of the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial compensable rating for bilateral hearing loss is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs