Citation Nr: 1527168	
Decision Date: 06/25/15    Archive Date: 07/07/15

DOCKET NO.  13-02 292	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUE

Entitlement to an initial rating in excess of 50 percent for bilateral hearing loss.  



REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

A. Bordewyk






INTRODUCTION

The Veteran served on active duty from January 1968 to April 1971.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which granted service connection bilateral hearing loss and assigned an initial 50 percent rating effective January 31, 2011.  

This appeal was processed, in part, using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.


FINDING OF FACT

At worst, the Veteran has Level VIII hearing in his right ear and Level IX hearing in his left ear.


CONCLUSION OF LAW

The criteria for an initial rating in excess of 50 percent for bilateral hearing loss have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.85 (Tables VI, VIA and VII, Diagnostic Code 6100), 4.86 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

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. §§ 5103, 5103A, 5106, 5107, 5126 (West 2014) redefined VA's duty to assist a Veteran in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.159, 3.326(a) (2014).

This appeal arises from disagreement with the initial evaluation following the grant of service connection.  The courts have held that once service connection is granted the claim is substantiated, additional VCAA 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).

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).

VA has obtained records of treatment reported by the Veteran, including service treatment records and VA treatment.  Additionally, the Veteran was provided VA examinations in November 2011 and September 2013 for to assess the current severity of his bilateral hearing loss.  In addition to providing objective test results, the November 2011 and September 2013 VA examiners noted the Veteran's complaints, his reported service and medical history, assessed the severity of the hearing loss, and discussed the types of situations where his hearing loss would impact him the most, as well as the effects his hearing loss would have on his daily activities.  Therefore, the examiner fully considered the functional effects of the disability.  See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements.  The appeal is thus ready to be considered on the merits.

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2014).

In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition.  The Board has a duty to acknowledge and consider all regulations that are potentially applicable.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required.  38 C.F.R. §§ 4.1, 4.2, 4.10.

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology.  Any change in a diagnostic code by VA must be specifically explained.  Pernorio v. Derwinski, 2 Vet. App. 625 (1992).

Words such as "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  38 C.F.R. 4.6 (2014).  Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6 (2014).

Where 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.  
See 38 C.F.R. § 4.7 (2014).

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21 (2014).

Evidence to be considered in the appeal of an initial disability rating is not limited to that reflecting the current severity of the disorder.  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 initial evaluation period.  Fenderson v. West, 12 Vet. App. 119 (1999).

Evaluations of hearing loss range from noncompensable to 100 percent, based upon 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 1000, 2000, 3000, and 4000 cycles per second.  38 C.F.R. § 4.85(a), (d) (2014).  

To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness.  38 C.F.R. § 4.85, Diagnostic Code 6100.  

When the pure tone thresholds at the four specified frequencies (1000, 2000, 3000, and 4000 hertz) are 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.  38 C.F.R. § 4.86 (a).  When the pure tone 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.  That numeral will then be elevated to the next highest Roman numeral.  38 C.F.R. § 4.86(b) (2014).

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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

A VA audiologic examination conducted in November 2011 revealed that pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
45
60
90
90
71
LEFT
40
70
85
85
70

Speech audiometry revealed speech recognition ability of 58 percent in the right ear and 50 percent in the left ear.  

During a VA audiologic examination in September 2013, pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
45
60
90
95
73
LEFT
45
70
90
90
74

Speech audiometry revealed speech recognition ability of 54 percent in the right ear and 46 percent in the left ear.  

Both VA examiners diagnosed bilateral sensorineural hearing loss and noted the Veteran's reports regarding the impact his hearing loss had on his daily functioning.  He specifically stated that due to his hearing loss, he had to see the speaker's face, could not hear when someone was speaking behind him, and had to ask people to repeat themselves frequently.  

VA treatment records demonstrate that the Veteran was given and was seen for maintenance of hearing aids.  Otherwise, the records are negative for information regarding the severity of the hearing loss disability.  

With respect to the right ear, the greatest pure tone threshold average was 73 decibels with a speech recognition score of 54 percent.  This translates to Level VIII hearing impairment for the right ear under Table VI.     

With respect to the left ear, the greatest pure tone threshold average was 74 decibels with a speech recognition score of 46 percent.  This translates to Level IX hearing impairment under Table VI for the left ear.  

Level IX hearing impairment in one ear and Level VIII in the other warrants a 50 percent rating under the applicable criteria.  38 C.F.R. § 4.85, Diagnostic Code 6100 (2014).  

There is no evidence of exceptional patterns of hearing as defined under 38 C.F.R. § 4.86 (2014).  

The Board notes that the Veteran submitted a private report from a January 2013 audiogram, where only the raw data was provided.  Although the results were not interpreted by the audiologist, it appears that pure tone threshold, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
55
65
85
94
75
LEFT
55
80
90
95
80

The private report indicated that the proper testing for speech recognition, the Maryland CNC word list, was not utilized, but rather the NU-6 word list was used.  Thus, the results from that testing cannot be used for rating purposes.  See 38 C.F.R. § 4.85.

Nevertheless, even if the results from the January 2013 private audiogram could be considered, they would not support the grant of an increased rating.  In the right ear, a pure tone threshold average of 75 decibels with a speech recognition score of 55 percent translates to Level VIII hearing impairment under Table VI.  In the left ear, a pure tone threshold average of 80 decibels with a speech recognition score of 60 percent translates to Level VII hearing impairment under Table VI, a lower level of impairment than what was demonstrated upon VA examination.  Level VIII in one ear and Level VII in the other translates to a 40 percent disability rating.  

In exceptional cases, an extraschedular rating may be provided.  38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  The Board finds that the rating criteria specifically contemplate the Veteran's impairment due to his service-connected hearing loss symptoms such as decreased hearing acuity, having to see a speaker's face in order to hear them, and requiring that a speaker repeat themselves.  The rating criteria are specifically based on such impairment in hearing acuity.  38 C.F.R. § 4.130.  Therefore, the rating criteria are adequate to evaluate the Veteran's disability from his service-connected bilateral hearing loss and referral to the Director, Compensation Service, for consideration of entitlement to an extraschedular rating is not warranted.

In addition, TDIU is an element of an increased rating claim.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  TDIU is granted where a Veteran's service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him.  38 C.F.R. § 4.16 (2014).  The Veteran has not reported, nor does the evidence suggest, that the Veteran is unable to obtain or maintain employment due to his service-connected hearing loss.  As such, entitlement to a TDIU is not warranted.

Accordingly, the Board concludes that the preponderance of the evidence is against the claim, and it is, therefore, denied.  In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C.A. § 5107(b).  Because, however, there is not an approximate balance of evidence, that rule is not helpful to the Veteran.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).


ORDER

A higher initial rating in excess of 50 percent for bilateral hearing loss is denied.  



____________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs