Citation Nr: 1515163	
Decision Date: 04/08/15    Archive Date: 04/21/15

DOCKET NO.  12-28 682	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to an initial compensable disability rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C. Eckart, Counsel


INTRODUCTION

The Veteran served on active duty from December 1981 to December 1984.  This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.


FINDING OF FACT

Throughout the initial rating period, the Veteran's hearing impairment has been no worse than Level I in the right ear and Level IV in the left ear.


CONCLUSION OF LAW

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


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103 , 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2014), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. 

They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 

The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

The Veteran was provided all required notice in a May 2011 letter, prior to the January 2012 rating decision on appeal. 

The record also reflects that all pertinent available service treatment records (STRs) and all available post-service medical evidence identified by the Veteran have been obtained.  The Veteran has been afforded appropriate VA examinations to address the severity of his service-connected bilateral hearing loss in March 2011 and December 2013.  The Veteran has not asserted, and the evidence of record does not show, that his disability has increased significantly in severity since his most recent examination.  

Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence.  Accordingly, the Board will address the merits of the Veteran's claim. 

General Legal Criteria: Disability Ratings

Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2014).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321(a) , 4.1 (2014). 

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA.  VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 

II. Increased Rating for Hearing Loss

Disability ratings for hearing loss disability are derived from mechanical application of the rating schedule to the numeric designations resulting from audiometric testing.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).

The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85 .

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.  Examinations will be conducted without the use of hearing aids.  38 C.F.R. § 4.85(a).

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).  The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(b).

Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average.  Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c).

"Puretone threshold average" as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85(d) . 

Table VII, "Percentage Evaluations of Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85(e) .

Provisions for evaluating exceptional patterns of hearing impairment are as follows:

(a) When the puretone thresholds at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz ) is 55 decibels or more, 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.

(b) When the puretone thresholds are 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; the numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2014); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54 .

In accordance with 38 C.F.R. §§ 4.1 , 4.2, 4.41, 4.42 (2014) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability under appeal. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability under review. 

By way of background, the Veteran was initially awarded service connection for bilateral hearing loss in a January 2012 rating decision, and a noncompensable evaluation was assigned.  

VA audiological records reveal that in November 2010 the Veteran was seen by audiology for taking impressions for hearing aids.  The ear examination itself was unremarkable and he was deemed a good candidate for hearing aids.  A December 2010 audiology follow-up for hearing aid evaluation noted the Veteran to have difficulty understanding conversations without amplification.   

In response to his original service connection claim, the Veteran was afforded an initial VA audiological evaluation in March 2011; the examiner reviewed the evidence of record and noted the Veteran's history.  This examination focused on causation and did not report actual functional complaints even in the section of the examination dedicated to this question.  On examination, puretone thresholds were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
30
25
40
60
LEFT
45
40
35
50
65

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 76 in the left ear.  The puretone averages were shown to be 38.75 for the right ear and 45 for the left ear from 1000 to 4000 Hertz. 

Thereafter the Veteran underwent another VA audiological examination in December 2013.  The functional impact on ordinary conditions was that he had to ask people to repeat themselves.  

On the authorized audiological evaluation pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
40
35
45
65
LEFT
50
45
40
55
65

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 80 percent in the left ear.  The puretone averages were shown to be 46.25 for the right ear and 51.25 for the left ear from 1000 to 4000 Hertz. 

The results from the March 2011 test demonstrate hearing level acuities of Level I for the right ear, and Level III in the left ear; an exceptional pattern of hearing loss was not shown in either ear.  Such hearing acuity levels commensurate to noncompensable evaluation under Table VII. See 38 C.F.R. §§ 4.85, 4.86.

Likewise the results from December 2013 continue to not show an exceptional pattern of hearing loss, with hearing level acuities of Level I for the right ear, and Level IV in the left ear.  Such hearing acuity levels commensurate to noncompensable evaluation under Table VII. See 38 C.F.R. §§ 4.85, 4.86.

Although the Veteran contends that a compensable rating is warranted, the evidence of record does not indicate that such rating is appropriate here. As already noted, the rating assigned for hearing loss is determined by a mechanical application of the rating schedule, which is grounded on numeric designations assigned to audiometric examination results.  Lendenmann, 3 Vet. App. at 349 . 

The Board has also considered the Veteran's assertion that his hearing loss presents an exceptional or unusual disability picture so as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extraschedular rating is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  Specifically, the Veteran asserted that his bilateral hearing loss is more disabling than currently rated.

The threshold factor for extraschedular 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).  Here, the rating criteria describe the Veteran's disability level and symptomatology in this case, as a degree of difficulty in hearing would be expected with any hearing loss.  The rating criteria provide for a greater evaluation for additional or more severe symptoms; and as such, his disability picture is contemplated by the rating schedule.  The Veteran has not pointed to objective evidence of marked interference with employment or the need for frequent hospitalization or extraordinary medical care.  The assigned schedular evaluation is adequate.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Consequently, referral for extraschedular consideration is not warranted. 

Thus, the preponderance of the evidence is against the Veteran's claim for a higher rating at any time during the claim period.  38 C.F.R. § 4.85, Diagnostic Code 6100. There is no reasonable doubt to be resolved as to this issue.  See 38 C.F.R. § 4.3.



ORDER

Entitlement to an increased compensable disability rating for bilateral hearing loss is denied.




____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs