Citation Nr: 1342802	
Decision Date: 12/24/13    Archive Date: 12/31/13

DOCKET NO.  13-14 627	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUE

Entitlement to an initial evaluation in excess of 20 percent prior to October 1, 2013, and 40 percent thereafter, for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Christopher Murray, Counsel






INTRODUCTION

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The Veteran had active military service from August 1961 to February 1962.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.

This case was brought before the Board in August 2013, at which time the claim was remanded to the Agency of Original Jurisdiction (AOJ) for further development.  The requested development having been completed, the case is once again before the Board for appellate consideration of the issue on appeal.


FINDINGS OF FACT

1. Prior to February 20, 2013, the Veteran's bilateral hearing loss disability has been objectively shown to be manifested by no more than Level III hearing acuity in the right ear and VIII in the left ear.

2. The Veteran was provided VA audiometric testing on February 20, 2013, which showed moderately-severe to profound mixed hearing loss with "fair" word recognition scores bilaterally.

3. As of February 20, 2013, the Veteran's bilateral hearing loss disability has been objectively shown to be manifested by no more than Level VI hearing acuity in the right ear and IX in the left ear.




CONCLUSIONS OF LAW

1. The criteria for an evaluation in excess of 20 percent for bilateral hearing loss prior to February 20, 2013, have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2013).

2. The criteria for an evaluation of 40 percent, but not greater, have been met as of February 20, 2013.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

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 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 v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  The appellant bears the burden of demonstrating any prejudice from defective notice with respect to downstream elements.  Goodwin v. Peake, 22 Vet. App. 128 (2008).  There has been no allegation of such error in this case.

VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013).

Service treatment records are associated with claims file.  All post-service treatment records 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 examinations in December 2010 and October 2013.  See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2013); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003).  These VA examinations are adequate for the purposes of evaluating the Veteran's hearing loss, as they involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran, and provides an adequate discussion of relevant symptomatology.  See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

As noted above, the instant claim was previously remanded by the Board in August 2013.  Specifically, the Board instructed that all outstanding VA treatment records be obtained and that the Veteran be provided an additional VA examination to address the current severity of his service-connected bilateral hearing loss.  VA treatment records have been obtained and associated with the virtual claims file, and the Veteran was provided the requested examination in October 2013, which the Board has found to be adequate.  There has been substantial compliance with the prior remand, and adjudication of the Veteran's claim may proceed.  See generally Stegall v. West, 11 Vet. App. 268, 271 (1998).

In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist.  38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159.



Analysis

Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence.  The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant.  Timberlake v. Gober, 14 Vet. App. 122 (2000).  The Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000).

VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 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 reviewed when making disability evaluations.  See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

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).

The Veteran's service-connected bilateral hearing loss has been evaluated as 20 percent disabling prior to October 1, 2013, and 40 percent thereafter, under the provisions of Diagnostic Code 6100. See 38 C.F.R. § 4.85 (2013).  

In evaluating hearing loss, disability ratings on a schedular basis are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Lendenmen v. Principi, 3 Vet. App. 345, 349 (1992).  The ratings schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment.  Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in both ears.  See 38 C.F.R. § 4.85.

When the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz ) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral.  38 C.F.R. § 4.86(a) (2013).  Additionally, when the pure tone threshold is 30 decibels or less at 1,000 Hertz , and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral.  Thereafter, that numeral will be elevated to the next higher numeral.  38 C.F.R. § 4.86(b) (2013).

Turning to the record, at the December 2010 VA examination, pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
50
65
80
80
69
LEFT
95
80
90
95
90

Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 82 percent in the left ear.  Entering the average pure tone thresholds and speech recognition abilities into Tables VI and VIa reveals the highest numeric designation of hearing impairment is III for the right ear (utilizing Table VI) and VIII for the left (utilizing Table VIa).  See 38 C.F.R. §§ 4.85, 4.86(a).  Entering the category designations for each ear into Table VII results in a 20 percent evaluation under Diagnostic Code 6100.  Id.

VA treatment records show the Veteran was provided audiometric testing on February 20, 2013.  While the numeric results of this test are not available, a diagnosis of moderately-severe to profound hearing loss of the right ear, and severe to profound hearing loss of the left, was rendered.  Word recognition scores were noted to be "fair" bilaterally.

The October 2013 VA examination shows pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
60
70
85
85
75
LEFT
95
80
95
100
93

Speech audiometry revealed speech recognition ability of 74 percent in the right ear and of 72 percent in the left ear.  Entering the average pure tone thresholds and speech recognition abilities into Tables VI and VIa reveals the highest numeric designation of hearing impairment is VI for the right ear (utilizing Table VI) and IX for the left (utilizing Table VIa).  See 38 C.F.R. §§ 4.85, 4.86(a).  Entering the category designations for each ear into Table VII results in a 40 percent evaluation under Diagnostic Code 6100.  Id.

The Board observes there is no audiometric testing prior to February 20, 2013, that would indicate an evaluation in excess of 20 percent is warranted.  While the numeric results of the testing provided on this date are unavailable, as discussed above, the Veteran was found to have moderately-severe to profound hearing loss of the right ear and severe to profound hearing loss of the left with "fair" word recognition scores bilaterally.  Therefore, resolving all doubt in the Veteran's favor, the Board finds that an initial evaluation of 40 percent is warranted as of February 20, 2013.  See 38 C.F.R. § 3.400(o) (2013) (effective date of an increased evaluation is warranted as of the earliest date as of which it is factually ascertainable that an increase in disability had occurred).  

The Board acknowledges the Veteran's statements that his bilateral hearing loss is worse than the evaluations assigned herein and that he is entitled to a higher initial evaluation for such hearing loss throughout the appeal period.  However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment.  Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.85, Diagnostic Code 6100 with respect to determining the severity of his service-connected bilateral hearing loss disability.  See Moray v. Brown, 2 Vet. App. 211, 214 (1993); see also Davidson v. Shinseki, 581 F.3d 1313 (2009).  

In sum, the Board finds that there is no audiological evidence of record to support an evaluation in excess of 20 percent for the Veteran's bilateral hearing loss disability prior to February 20, 2013.  The preponderance of the evidence is against this aspect of the Veteran's claim.  Affording the Veteran the benefit of the doubt, the Board finds an initial evaluation of 40 percent is warranted as of February 20, 2013, the date VA audiometric testing revealed moderately-severe to profound hearing loss bilaterally.  To this extent, the Veteran's claim is granted.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

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 understanding speech in the presence of background noise) 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 and clarity, which is precisely what is contemplated in the rating assigned.  See Martinak v. Nicholson, 21 Vet. App. 447 (2007).  As the available schedular criteria for this service-connected disability are adequate, referral for consideration of an extraschedular rating is not warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).

Entitlement to total disability rating based upon individual unemployability (TDIU) is an element of all increased rating claims.  See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  In this case, neither the Veteran nor the record raises the issue that the Veteran is unemployable due solely to his service-connected hearing loss.  There is no medical evidence that the Veteran's hearing loss disability has markedly interfered with employment, and the Veteran has not stated that he is unable to perform his duties due to his service-connected disability.  Therefore, remand or referral of a claim for TDIU is not necessary as there is no evidence of unemployability due to the service-connected disability.


ORDER

An initial evaluation in excess of 20 percent prior to February 20, 2013, is denied.

An initial evaluation of 40 percent, but not greater, is granted as of February 20, 2013.




____________________________________________
KELLI A. KORDICH
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs