Citation Nr: 1343224	
Decision Date: 12/30/13    Archive Date: 01/07/14

DOCKET NO.  12-11 320	)	DATE
	)
	)

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


THE ISSUE

Entitlement to a compensable evaluation for service connected bilateral hearing loss.  


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

Neichole SJ Linhorst, Associate Counsel






INTRODUCTION

The Veteran served on active duty from November 1975 to November 1979.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued October 2010 by the Oakland, California Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for bilateral hearing loss and assigned a noncompensable evaluation.  

In his substantive appeal, the Veteran requested a hearing before a Veterans Law Judge via videoconference.  An August 2013 letter informed him that his hearing was scheduled for September 5, 2013.  However, in correspondence received in October 2013, the Veteran indicated that he was unable to secure transportation to the hearing, and never received a notice for the hearing.  As such, he requested that the hearing be rescheduled.  The Veteran was notified via correspondence dated September 23, 2013 that the hearing was rescheduled for November 13, 2013.  However, in correspondence dated November 12, 2013, the Veteran cancelled his hearing request.  As such, the Board finds that the request for hearing is withdrawn.  38 C.F.R. § 20.704.  

The Virtual VA electronic records storage system was reviewed, and it does not reveal any relevant additional documents not currently associated with the paper claims folder.  


FINDINGS OF FACT

In August 2010, the Veteran's bilateral hearing loss was manifested by Level II hearing acuity in both ears; in December 2012, he exhibited Level III hearing acuity in both ears. 




CONCLUSION OF LAW

The criteria for a compensable evaluation for service-connected bilateral hearing loss have not been met.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.485, 4.486, Diagnostic Code 6100 (2013).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2013)) redefined VA's duty to assist a claimant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013).

The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2012).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule).  Moreover, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (reaffirming that the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect).

In a March 2010 VCAA letter sent to the Veteran prior to the appealed October 2010 rating decision, the RO provided notice to the Veteran regarding what information and evidence was needed to substantiate the underlying service connection claim as well as what information and evidence must be submitted by the Veteran, and the types of evidence that would be obtained by VA.  The March 2010 VCAA letter also advised the Veteran how disability evaluations and effective dates are assigned, and the type of evidence that impacts those determinations.  The Veteran is appealing the initial rating assigned following a grant of service connection.  The VCAA notice provided before service connection was granted was legally sufficient.  The Board finds that VA's duty to notify has been met.  

The record also reflects that VA has made reasonable efforts to assist the Veteran in the development of his claim.  Specifically, service treatment records and VA treatment records from January 2010 to April 2012, and VA examinations from August 2010 and December 2012 have been associated with the claims file.  

The Board finds that the VA examination reports are adequate for evaluation purposes because the examiners either reviewed the claims file or were otherwise informed of the relevant facts by the medical history provided by the Veteran, considered the contentions of the Veteran, thoroughly examined the Veteran, and addressed the relevant rating criteria, including the functional effects caused by the Veteran's hearing loss.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 -04 (2008); see also Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) (providing that a VA medical examiner must, in the context of an audiological examination, fully describe the functional effects caused by a hearing disability in his or her final report).  

As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  The Veteran was an active participant in the claims process, submitting statements setting forth his contentions. Thus, he has been provided with a meaningful opportunity to participate in the claims process and has done so.  The Board finds that VA's duty to assist has been met.   

II.  Pertinent Laws and Regulations

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013).  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1 (2013). Other applicable, general policy considerations include interpreting reports of examination in light of the whole recorded history, and reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability.  38 C.F.R. § 4.2 (2013).  In addition, the Board must resolve any reasonable doubt regarding the degree of disability in favor of the Veteran; including where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating.  38 C.F.R. §§ 4.3, 4.7 (2013).  Finally, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity is also part of the analysis.  38 C.F.R. § 4.10 (2013). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  

Where the Veteran has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999).  

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. 38 C.F.R. § 4.85(a) (2012).  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 1,000, 2,000, 3,000, and 4,000 Hertz.  To evaluate the degree of disability from bilateral service- connected defective hearing, the Rating Schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness.  38 C.F.R. § 4.85, 4.86, Diagnostic Code 6100 (2013).  The evaluation of hearing impairment applies a rather structured formula that is essentially a mechanical application of the rating schedule to numeric designations after audiology evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  

Under 38 C.F.R. § 4.86, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz)is 55 decibels or more, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  Each ear will be evaluated separately. 38 C.F.R. § 4.86(a) (2013).  Further, when the average puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Level 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 Level.  Each ear will be evaluated separately. 38 C.F.R. § 4.86(b) (2013). 

III.  Analysis

The Veteran contends that the severity of his bilateral hearing loss warrants a higher disability rating.  

In an October 2010 rating decision, the RO granted service connection for bilateral hearing loss and assigned a noncompensable evaluation under Diagnostic Code 6100 effective March 10, 2010, the date of receipt of the Veteran's original claim for compensation benefits.  

Audiometric testing conducted in August 2010 indicated that the Veteran exhibited puretone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
35
35
50
60
LEFT
30
30
30
70
85

This equates to an average decibel loss of 45 dB in the right ear, and 53.8 dB in the left ear.  Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 84 percent in the left ear.

Audiometric testing conducted in December 2012 indicated that the Veteran exhibited puretone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
35
30
40
65
LEFT
30
30
20
60
80

This equates to an average decibel loss of 42.5 dB in the right ear, and 47.5 dB in the left ear.  Speech audiometry revealed speech recognition ability of 82 percent in the right ear and of 82 percent in the left ear.

VA treatment in February 2010 included an audiometric evaluation for hearing aids.  Specific puretone thresholds and speech recognition ability testing that conformed with VA rating standards were not included in the evaluation.  As such, these results were not effective for rating the Veteran's bilateral hearing loss disability.  

Thus, in August 2010, the Veteran exhibited Level II hearing acuity in both ears according to Table VI.  In December 2012, the Veteran exhibited Level III hearing acuity in both ears according to Table VI.  The 2010 and 2012 findings are commensurate with the currently assigned noncompensable evaluation according to Table VII.  No exceptional pattern of hearing impairment was demonstrated at either examination.  The Board has considered the Veteran's sincere and credible lay belief that the severity of his hearing loss warrants a higher rating.  Competent medical evidence, however, is required to substantiate that the Veteran's hearing impairment warrants a higher schedular rating.  As noted above, the evaluation of hearing loss is reached by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  The medical evidence weighs against the assignment of a higher rating.  Accordingly, the currently assigned schedular rating is appropriate.  

The Veteran's bilateral hearing loss has not been shown to be manifested by greater than the criteria associated with the rating assigned under the designated diagnostic code during any portion of the appeal period.  Accordingly, staged ratings are not in order and the assigned rating is appropriate for the entire period of the Veteran's appeal.  Fenderson, 12 Vet. App. at 126. 

Consideration has also been given regarding whether the schedular evaluation is inadequate, thus requiring that the RO refer the claim to the Under Secretary for Benefits or to the Director, Compensation and Pension Service, for consideration of an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.  38 C.F.R. § 3.321(b)(1) (2013).  In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Thun, 22 Vet. App. at 115-16.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating.  Otherwise, the schedular evaluation is adequate, and referral is not required.  38 C.F.R. § 3.321(b)(1) (2012); Thun, 22 Vet. App. at 116.  

At the August 2010 VA examination, in regard to the functional effects caused by the hearing loss, the Veteran reported that his primary complaint was decreased hearing and understanding, and his most difficult communication situation was in groups.  He asserted that listening situations where he experienced difficulty were at the dinner table, on the telephone, watching television, one-to-one conversation, in a restaurant, at a family gathering, when someone is whispering, and listening to males and females.  The Veteran's personal ranking of the effects and impact of his hearing loss on daily activities was severe; however, he indicated that hearing aids greatly assisted him.  In his November 2010 notice of disagreement, the Veteran indicated that he was fitted with hearing aids due to his hearing loss because he was unable to hear all the sounds going on around him.  He stated that when he was talking to someone, he could not hear other sounds such as the television or radio if they are on.  The Veteran thought a higher rating was warranted since he had to use hearing aids to conduct daily business, and being a salesman meant he had to have good communication skills which necessitated the ability to hear the customer.  The December 2012VA examination report noted functional effects caused by the hearing loss, as the Veteran reported that he has difficulty following day to day conversation in the presence of background noise.  

After review of the foregoing, the Board finds that the Veteran has not described any exceptional or unusual features associated with his hearing impairment.  The lay and medical evidence shows that the functional effects caused by the hearing disability do not impact the Veteran in any exceptional or unusual way that is not already contemplated in the Diagnostic Code (i.e. difficulty hearing).  Given all of the foregoing, the Board finds that the schedular evaluation in this case is not inadequate.  As the Board finds that the Veteran's disability picture is contemplated by the rating schedule, the inquiry ends and the Board need not consider whether the disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization.  Accordingly, referral for consideration of an extra-schedular rating is not warranted.  

Finally, the Board also recognizes that the Court of Appeals for Veterans Claims has clarified that a claim for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities exists as part of a claim for an increase (whether in an original claim or as part of a claim for increased rating).  Rice v. Shinseki, 22 Vet. App. 447 (2009).  A TDIU claim is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability.  See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001).  The Veteran has not contended that his bilateral hearing loss renders him unemployable, and the other evidence of record does not otherwise suggest that this is the case.  For these reasons, the Board finds that a claim for TDIU has neither been raised by the Veteran nor by the record.  

In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  The preponderance of the evidence, however, is against the Veteran's claim and so that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).  


ORDER

A compensable evaluation for service-connected bilateral hearing loss is denied.  



____________________________________________
K. OSBORNE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs