Citation Nr: 1503405	
Decision Date: 01/23/15    Archive Date: 01/27/15

DOCKET NO.  12-35 814	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to a compensable rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Tommy D. Klepper, Attorney at Law


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

S. Gordon, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from February 1968 to August 1987; he had prior service in the Army National Guard.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the Veteran's claim of entitlement to an increased (compensable) rating for bilateral hearing loss. 

In August 2013, the Veteran testified at a videoconference hearing at the RO before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims.  Review of such file reveals VA treatment records dated from October 2011 to February 2012.  The remaining documents in this file have been reviewed and considered as part of this appeal.

The issue of entitlement to service connection for Meniere's syndrome has been raised by the record in a July 2013 statement made during the Board hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2014).


FINDING OF FACT

The most probative evidence reflects that bilateral hearing loss is manifested by no worse than Level II hearing loss in the right ear and Level II hearing loss in the left ear.




CONCLUSION OF LAW

The criteria for a compensable rating for bilateral hearing loss have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. VCAA

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2014)); see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a) (2014), VA has a duty
to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant.  38 U.S.C.A.      § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). 

In Pelegrini v. Principi, 17 Vet. App. 412 (2004), the United States Court of Appeals for Veterans Claims (Court) held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits.  This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits.

The Veteran was provided VCAA notice in an August 2012 letter, advising him of what information and evidence is needed to substantiate his claim for an increased rating, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter included information regarding how disability evaluations and effective dates are assigned and the type of evidence that impacts those determinations.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The Board also finds that VA has complied with all assistance provisions of the VCAA.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).  The Veteran was provided with a VA audiological examination.  The evidence of record contains service treatment records, post-service VA and private treatment records, VA examination reports, lay statements, and hearing testimony.  There is no indication of relevant, outstanding records that would support the Veteran's claim.  38 U.S.C.A. 		 § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3).  

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) (2010) requires that any Veterans Law Judge who chairs a hearing fulfill two duties to comply with the VCAA.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Bryant, 23 Vet. App. at 488.  Here, during the July 2013 hearing, the undersigned Veterans Law Judge informed the Veteran of what was required to sustain the claim and fully explained the issues, the notice requirements under Bryant were effectively satisfied.

VA has considered and complied with the VCAA provisions discussed above.  The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence.  The Veteran was an active participant in the claims process by submitting evidence and argument.  Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so.  Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran.  Pelegrini, 18 Vet. App. at 121.  Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits.  See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).  

II. Criteria & Analysis

Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity.  Separate diagnostic codes identify the various disabilities.  38 C.F.R. Part 4 (2013).  When rating a service-connected disability, the entire history must be borne in mind.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Additionally, although regulations require that a disability be viewed in relation to its recorded history, 38 C.F.R. §§ 4.1, 4.2, when assigning a disability rating, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation during the relevant rating period.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.
The Veteran is assigned a noncompensable rating for bilateral hearing loss pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100 (2014).

The assignment of disability ratings for service-connected hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Evaluations for 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 (using the Maryland CNC) together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz.  The rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal auditory acuity to Level XI for profound deafness.  38 C.F.R. § 4.85 (2014).

Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns).
	
Table VI
Numeric designation of hearing impairment based on puretone threshold average and speech discrimination.

% of
discrim-
ination
Puretone Threshold Average

0-41
42-49
50-57
58-65
66-73
74-81
82-89
90-97
98+
92-100
I
I
I
II
II
II
III
III
IV 
84-90
II
II
II
III
III
III
IV
IV
IV 
76-82
III
III
IV
IV
IV
V
V
V
V 
68-74
IV
IV
V
V
VI
VI
VII
VII
VII 
60-66
V
V
VI
VI
VII
VII
VIII
VIII
VIII 
52-58
VI
VI
VII
VII
VIII
VIII
VIII
VIII
IX 
44-50
VII
VII
VIII
VIII
VIII
IX
IX
IX
X 
36-42
VIII
VIII
VIII
IX
IX
IX
X
X
X 
0-34
IX
X
XI
XI
XI
XI
XI
XI
XI 

Table VIA*
Numeric designation of hearing impairment based only on puretone threshold average

Puretone Threshold Average
0-41
42-48
49-55
56-62
63-69
70-76
77-83
84-90
91-97
98-104
105+
I
II
III
IV
V
VI
VII
VIII
IX
X
XI
*This table is for use only as specified in §§ 4.85 and 4.86. 
Table VII, "Percentage Evaluations for Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing.  The percentage evaluation is located at the point where the row and column intersect.  38 C.F.R. § 4.85, Diagnostic Code 6100 (2014).

Table VII
Percentage evaluation for hearing impairment (Diagnostic Code 6100)
Poorer Ear
Better 
Ear











XI
100










X
90
80









IX
80
70
60








VIII
70
60
50
50







VII
60
60
50
40
40






VI
50
50
40
40
30
30





V
40
40
40
30
30
20
20




IV
30
30
30
20
20
20
10
10



III
20
20
20
20
20
10
10
10
0


II
10
10
10
10
10
10
10
0
0
0

I
10
10
0
0
0
0
0
0
0
0
0 

XI
X
IX
VIII
VII
VI
V
IV
III
II
I

When the puretone thresholds at the four specified frequencies (1000, 2000, 3000, and 4000 hertz) are 55 decibels or more, or when the puretone thresholds are 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz, 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.  Each ear will be evaluated separately.  That numeral will then be elevated to the next highest Roman numeral.  38 C.F.R. § 4.86 (2014). 

The Veteran sought private audiological evaluation at the Oklahoma Ear Institute in May 2011.  Puretone air conduction thresholds, in decibels, were reported as follows:



HERTZ


A
1000
B
2000
C
3000
D
4000
A+B+C+D
AVG.
RIGHT
15
15
35
50
28.75
LEFT
15
20
50
60
36.25

Speech recognition scores using the "NU-6" word list were reported as 100 percent for the right ear and 92 percent for the left ear.  Although the speech discrimination scores were noted in the report, such scores were determined using the "NU-6" word list.  For VA purposes, the Maryland CNC Test must be used.  38 C.F.R.        § 4.85(a).  

The Board points out that the May 2011 private examination was not conducted for disability rating purposes and did not use the Maryland CNC to test speech discrimination.  However, if, for the sake of argument, the Board applied the reported results to Table VI, a puretone threshold average of 28.75 decibels and a speech discrimination of 100 percent in the right ear results in Level I hearing for that ear.  A puretone threshold average of 36.25 decibels and a speech discrimination of 92 percent in the left ear results in Level I hearing for that ear.  Under Table VII, a Level I for the right ear combined with a Level I for the left ear results in a noncompensable evaluation.  Similarly, if the Board applied only the puretone threshold averages to Table VIA to obtain a numeric designation of hearing impairment pursuant to 38 C.F.R. § 4.85, the result is a Level I hearing for each ear, which would result in a noncompensable evaluation under Table VII.

In December 2011, the Veteran presented for a VA audiology consultation for treatment purposes.  He complained of decreased hearing sensitivity and increased communication difficulty.  He reported occasional difficulty hearing in background noise and occasional difficulty hearing conversational speech at a distance.  The Veteran denied prior use of hearing instruments and also denied significant history of ear infections, ear pain, aural pressure, familial hearing loss, aural fullness, or otologic surgery.  A history of chronic or persistent vertigo or dizziness was also denied.  He expressed interest in the possible use of hearing instruments as it related to his job security.  He denied significant communication difficulty except when in adverse environments.   Puretone thresholds, in decibels, were reported as follows:



HERTZ


A
1000
B
2000
C
3000
D
4000
A+B+C+D
AVG.
RIGHT
15
15
30
45
26.25
LEFT
10
20
50
60
35

Speech recognition threshold scores were reported; however, speech discrimination scores using the Maryland CNC were not reported.  The examining audiologist noted that the Veteran expressed interest in the evaluation of hearing instruments if required by his position as a Federal Marshall.  The Veteran was counseled regarding appropriate styles of amplification as well as the potential benefits and limitations of hearing aids.  The examining audiologist recommended the use of hearing protection when exposed to excessive levels of noise.  The Veteran was seen for fitting of hearing aids two months later.

Again, the December 2011 audiology consultation was for treatment purposes rather than disability rating purposes.  However, if, for the sake of argument, the Board applied the available results to Table VIA to obtain a numeric designation of hearing impairment based only on puretone threshold average pursuant to 38 C.F.R. § 4.85(c), a puretone threshold average of 26.25 decibels for the right ear results in Level I hearing for that ear.  A puretone threshold average of 35 decibels for the left ear results in Level I hearing for that ear.  Under Table VII, a Level I for the right ear combined with a Level I for the left ear results in a noncompensable evaluation.  

In September 2012, the Veteran underwent a VA audiology examination.  The examination report reflects that the Veteran was fully capable of participating in the audiology examination and testing process.  When asked to describe the effect of 

his hearing loss on his occupational functioning and daily activities, the Veteran reported that he was having problems passing his yearly physical for the U.S. Marshall's Service.  He was diagnosed with mild to severe bilateral high frequency sensorineural hearing loss.  

Puretone air conduction thresholds, in decibels, were reported as follows:



HERTZ


A
1000
B
2000
C
3000
D
4000
A+B+C+D
AVG.
RIGHT
20
25
35
50
32.5
LEFT
20
30
50
65
41.25

Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 88 percent in the left ear.  

Applying the above results to Table VI, a puretone threshold average of 32.5 decibels and a speech discrimination of 84 percent in the right ear results in Level II hearing for that ear.  A puretone threshold average of 41.25 decibels and a speech discrimination of 88 percent in the left ear results in Level II hearing for that ear.  Under Table VII, a Level II for the right ear combined with a Level II for the left ear results in a noncompensable evaluation.  38 C.F.R. § 4.85.  

In July 2013, the Veteran testified that his hearing had affected his employment because he received a retest letter after undergoing an audiological examination as part of a yearly physical for the Marshall's Service.  He explained that his employment would be suspended if he was unable to pass the retest audiological examination.  He further testified that he had to decrease the television volume when speaking to his wife and that she had to repeat herself.  The Veteran stated that his hearing was steadily decreasing and causing him problems.

In August 2013, the Veteran's wife submitted a statement indicating that the Veteran cannot hear when people speak in a normal tone of voice unless they increase the volume of their voice and there is no background noise.  She also related that he constantly asks for things to be repeated to him.  She further stated that at times, the Veteran cannot tell where sounds are coming from.

The Board has considered the medical and lay evidence of record and finds that a compensable rating for bilateral hearing loss is not warranted.

The Board notes that the September 2012 VA examination was conducted in accordance with 38 C.F.R. § 4.85(a) and is highly probative.  The Board acknowledges that in Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (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.  The VA examiners' reports included the reported effects of the Veteran's hearing loss on his daily functioning.  Specifically, the 2012 examiner noted that the Veteran reported having problems passing his yearly physical for the U.S. Marshall's Service.  

The Board acknowledges the Veteran's complaints regarding the functional impact of his hearing loss on his daily life and that upon work-related testing, his puretone audiogram did not meet the required hearing standard.  However, the Board points out that the assignment of disability ratings for hearing impairment is derived from a mechanical formula based on levels of puretone threshold average and speech discrimination.  The findings on VA examination in September 2012 are more probative than the lay contentions as to the extent of hearing loss and those examinations performed for treatment purposes and for employment.  In summary, the most probative evidence indicates that the Veteran's hearing loss falls clearly within the criteria for a noncompensable evaluation for the duration of the claim and that a higher rating is not warranted for any time period.  The most probative evidence reflects that bilateral hearing loss is manifested by no worse than Level II hearing loss in the right ear and Level II hearing loss in the left ear.  Therefore, the assigned noncompensable rating for bilateral hearing loss is proper throughout the appeal period and a higher rating for bilateral hearing loss is denied.

The Board has considered whether the Veteran's bilateral hearing loss disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extra-schedular rating is warranted.  See 38 C.F.R. § 3.321(b)(1) (2013); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  

In Thun v. Peake, 22 Vet. App. 111 (2008), the Court addressed at length the extra-schedular provisions of 38 C.F.R. § 3.321(b).  The Court held that the determination of whether a claimant is entitled to an extra-schedular rating is a three-step inquiry.  Id. at 115. 

The first of the three elements of an extra-schedular rating under § 3.321(b)(1) is a finding of either the RO or the Board that the evidence "presents such an exceptional or unusual disability picture that the available schedular evaluations for that service-connected disability are inadequate."  Thun, 22 Vet. App. at 115; see also Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009) (clarifying that although the Court in Thun identified three "steps," they are, in fact, necessary "elements" of an extra-schedular rating).  In order to determine whether a disability is "exceptional or unusual," there "must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability."  Thun, 22 Vet. App. at 115.  "[I]f the [rating] criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, [and] the assigned schedular evaluation is, therefore adequate, and no referral is required."  Id.

If the first element is met, the second element is a determination of whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Id. at 116.  Such factors include "marked interference with employment" and "frequent periods of hospitalization."  Id.  This task is also to be performed by the RO or the Board.  Id. 
If these two elements are met, the case must be referred to the Under Secretary for Benefits or the Director of Compensation and Pension Service for completion of the third step or element-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Id.

Here, the Board finds that the Veteran's bilateral hearing loss does not present an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards.  Specifically, the degree of the Veteran's hearing loss is capable of measurement and is fully contemplated by the rating criteria at Diagnostic Code 6100.  

Even if the Veteran's hearing loss disability was not fully contemplated by the rating criteria at Diagnostic Code 6100, the Board finds that his hearing loss disability does not present an exceptional disability picture with related factors such as marked interference with employment or frequent hospitalization.  38 C.F.R.       § 3.321(b)(1).  In this case, there is no evidence that the Veteran has been hospitalized for his hearing loss.  While the Veteran contends that he could be terminated by his current employer for failure to meet their required hearing standard, there is no indication that the Veteran's employment has been terminated due to his service-connected hearing loss disability.  Moreover, while the Veteran has difficulty hearing others due to his hearing loss disability, there is no evidence that he is unable to perform some type of substantially gainful employment specifically as a result of these limitations.  Additionally, the Veteran appears to have maintained employment since his retirement from military service with little difficulty due to hearing loss.  Accordingly, a referral for extra-schedular consideration is not warranted.

Finally, the Board notes that under Johnson v. McDonald, 2013-7104, 2014 WL 3562218 (Fed. Cir. Aug. 6, 2014), a Veteran may be awarded an extraschedular rating based on the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced.  Nevertheless, in this case, after applying the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional disabilities that have not been attributed to a specific service-connected condition.  Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.  

In reaching the conclusions above, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim for an increased rating for bilateral hearing loss, that doctrine is not helpful to the Veteran.  See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).


ORDER

Entitlement to a compensable rating for bilateral hearing loss is denied.



____________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs