Citation Nr: 1534215 Decision Date: 08/11/15 Archive Date: 08/20/15 DOCKET NO. 11-03 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Michael Sanford, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1980 to November 1980 and from January 1984 to August 2006. This matter comes before the Board of Veterans' Appeals on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The issue on appeal is entitlement to an initial compensable rating for bilateral hearing loss. In the January 2009 rating decision, service connection for left ear hearing loss was denied while service connection for right ear hearing loss was granted. In March 2009, the Veteran disagreed with the denial of service connection for left ear hearing loss and the assignment of a noncompensable rating for right ear hearing loss. In February 2011, the Veteran perfected his appeal of those issues. Service connection for left ear hearing loss was granted and the RO combined the service connected disabilities as bilateral hearing loss. The RO issued a supplemental statement of the case (SSOC) in June 2013 addressing entitlement to a compensable rating for bilateral hearing loss. As such, that issue is on appeal. See Percy v. Shinseki, 23 Vet. App. 37 (2009) (holding that an issue can be on appeal if VA has treated it as on appeal and the appellant might have reason to believe it was on appeal). The issues of entitlement to service connection for a psychiatric disability and a sleep disorder and entitlement to increased ratings for bilateral knee disabilities and a lumbar spine disability have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). See September 2014 Claim (VBMS). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). FINDING OF FACT Throughout the entire appeal period, the Veteran had had bilateral hearing loss manifested by no worse than Level I hearing acuity in the right ear and Level I hearing acuity 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, 5107 (West 2014); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits pursuant to 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Regarding VA's duty to notify, in June 2008, the Veteran was afforded notice of how to substantiate his claim of service connection for bilateral hearing loss. Benefits were subsequently granted, and the Veteran appealed the rating assigned. In cases such as this, where the claim has been granted and an initial disability rating and effective date have been assigned, the typical 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/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008); see also Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). There has been no allegation of such error in this case. With respect to VA's duty to assist, all relevant evidence necessary for an equitable resolution of the issue on appeal has been obtained. The Veteran has not identified any further outstanding pertinent post-service treatment records. He has been afforded multiple VA examinations for his service-connected bilateral hearing loss over the course of the appeal. The Board finds that, collectively, these examinations are adequate for the purposes of the evaluating the Veteran's bilateral hearing loss, as each involved a review of the Veteran's pertinent medical history as well as a clinical examination of the Veteran, and provided findings responsive to the applicable rating criteria. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board notes the Veteran's argument that the Veteran's last VA examination was conducted in 2010 and, therefore, is stale. See July 2015 Appellate Brief (VBMS). However, the latest VA examination to determine the severity of the Veteran's bilateral hearing loss was conducted in January 2013, not 2010. Moreover, the duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); VAOPGCPREC 11-95 (1995). Indeed, in this case there is no evidence that the Veteran's bilateral hearing loss has worsened since his January 2013 VA examination. Thus, the duty to assist does not require that the Board remand the claim for a new VA examination. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (duty to provide a thorough and contemporaneous examination is triggered when the "evidence indicates there has been a material change in a disability or that the current rating may be incorrect"). 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, 5103A; 38 C.F.R. § 3.159. Merits Because the Veteran is challenging an initially assigned disability rating, that issue has been in continuous appellate status since the original assignment of service connection. The evidence to be considered includes all evidence proffered in support of the original claim. Fenderson v. West, 12 Vet. App. 119 (1999). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The assigned evaluation for hearing loss is determined by mechanically applying the rating criteria to certified test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examinations. Evaluations of hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. The rating criteria establish eleven auditory acuity levels designated from I to XI. As set forth in the regulations, Tables VI, VIa, and VII are used to calculate the rating to be assigned. See 38 C.F.R. § 4.85, Diagnostic Code 6100 (2014). Additionally, the regulations allow for evaluating exceptional patterns of hearing impairment. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a) (2014). When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). Audiometric testing from March 2008 is of record. In March 2008, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 10 20 15 45 23 LEFT 10 20 25 45 25 Speech recognition was 100 percent bilaterally. The applicable regulation requires that the Maryland CNC speech discrimination test be used to evaluate hearing loss for VA purposes. See 38 C.F.R. § 4.85(a). It is unclear whether the test employed during March 2008 testing was the Maryland CNC test, as required by VA regulations for rating purposes. Nonetheless, even assuming that test is the Maryland CNC test, those results would not warrant an initial compensable rating. An exceptional pattern of bilateral hearing loss was not shown. See 38 C.F.R. § 4.86. Under Table VI, the Veteran's right ear is assigned Roman numeral I and the left ear is assigned Roman numeral I. Under Table VII, if both ears are rated I, a zero percent disability rating is assigned. The Veteran was afforded a VA examination in October 2008. On the October 2008 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 5 10 20 45 20 LEFT 5 15 25 35 20 Speech recognition was 94 percent in the right ear and 100 percent in the left ear. An exceptional pattern of bilateral hearing loss was not shown. See 38 C.F.R. § 4.86. Under Table VI, the Veteran's right ear is assigned Roman numeral I and the left ear is assigned Roman numeral I. Under Table VII, if both ears are rated I, a zero percent disability rating is assigned. Audiometric testing from December 2010 is of record. In December 2010, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 15 15 20 45 24 LEFT 15 20 30 45 28 Speech recognition was 96 percent bilaterally. The applicable regulation requires that the Maryland CNC speech discrimination test be used to evaluate hearing loss for VA purposes. See 38 C.F.R. § 4.85(a). It is unclear whether the test employed during March 2008 testing was the Maryland CNC test, as required by VA regulations for rating purposes. Nonetheless, even assuming that test is the Maryland CNC test, those results would not warrant an initial compensable rating. An exceptional pattern of bilateral hearing loss was not shown. See 38 C.F.R. § 4.86. Under Table VI, the Veteran's right ear is assigned Roman numeral I and the left ear is assigned Roman numeral I. Under Table VII, if both ears are rated I, a zero percent disability rating is assigned. The Veteran was afforded a VA examination in January 2013. On the January 2013 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 30 30 40 31 LEFT 15 30 45 45 34 Speech recognition was 100 percent bilaterally. An exceptional pattern of bilateral hearing loss was not shown. See 38 C.F.R. § 4.86. Under Table VI, the Veteran's right ear is assigned Roman numeral I and the left ear is assigned Roman numeral I. Under Table VII, if both ears are rated I, a zero percent disability rating is assigned. Although the Veteran argues that a higher rating during this period is warranted, the evidence of record does not indicate that a compensable 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 effect the hearing loss has on the ordinary conditions of life and the Veteran's ability to work. The 2010 examination noted that hearing loss was primarily in the high frequency ranges and that the Veteran retained excellent word intelligibility scores. It was recommended that strategies be employed to improve communication exchange. The January 2013 examination noted that the hearing loss had no impact on the ordinary conditions of life and did not limit his ability to work. In reaching this decision, the Board considered the benefit-of-the-doubt rule. However, the preponderance of the evidence is against the Veteran's claim for an initial compensable evaluation, as the evidence of record does not show that the criteria for a compensable rating has been met. Therefore, an initial compensable evaluation is not warranted. The record does not establish that the rating criteria are inadequate for rating the Veteran's service-connected bilateral hearing loss. The Veteran's disability is manifested by decreased hearing. The effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). As a final note, 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, the Veteran does not claim and the record does not otherwise suggest that the Veteran is unemployable due solely to his service-connected bilateral hearing loss. See January 2013 VA Examination Report (hearing loss does not impact Veteran's employability); March 2008 VA Examination Report (same). Thus, the issue of TDIU is not raised by the record. ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs