Citation Nr: 1601406	
Decision Date: 01/13/16    Archive Date: 01/21/16

DOCKET NO.  14-13 153	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

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

2.  Entitlement to an initial compensable disability rating for residuals of malaria.


ATTORNEY FOR THE BOARD

U. Ifon, Associate Counsel



INTRODUCTION

The Veteran served on active duty from May 1964 to May 1967.

This matter arises before the Board of Veterans' Appeals (Board) from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In a November 2015 statement, the Veteran revoked representation by The American Legion and there has been no new evidence of representation since that time.

The issue of entitlement to an initial compensable disability rating for residuals of malaria is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

At worst, the Veteran has level III hearing loss bilaterally.


CONCLUSION OF LAW

The criteria for an initial compensable rating for a bilateral hearing loss disability have not been met.  38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.3, 4.85, Diagnostic Code 6100 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met.
VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim.  He was afforded pertinent VA examination in September 2012 and the examiner provided sufficient detail for the Board to make a decision.  The examination report is deemed adequate and there is no objective evidence indicating there has been a material change in the severity of the Veteran's hearing loss since he was last examined.  38 C.F.R. § 3.327(a).  Further, treatment records do not reveal any evidence of worsening and the Veteran has not alleged worsening symptoms.  In any event, 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.  VAOPGCPREC 11-95.
Thus, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.  38 C.F.R. § 3.159(c).

Bilateral Hearing Loss Disability

The Veteran contends his bilateral hearing loss disability warrants a compensable disability rating.  

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity.  See 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.

The Veteran's entire history is reviewed when making disability evaluations.  See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  See 38 C.F.R. § 4.3.

Hearing loss is evaluated under Diagnostic Code 6100.  38 C.F.R. § 4.85.  Evaluations of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test (Maryland CNC) and the average hearing threshold, as measured by puretone audiometric tests at the frequencies of 1000, 2000, 3000 and 4000 Hertz (Hz).  The Rating Schedule establishes 11 auditory acuity levels designated from level I, for essentially normal hearing acuity, through level XI for profound deafness.  Defective hearing is rated on the basis of a mere mechanical application of the rating criteria.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

At a September 2012 VA audiology examination, the Veteran's puretone thresholds, in decibels, were as follows:

Frequency (Hz)
1000
2000
3000
4000
Right 
40
55
85
90
Left 
50
70
90
90

The Maryland CNC speech discrimination test score was 84 percent.

Using Table VI, the Veteran's VA examination revealed level III hearing loss in the right ear and a level III hearing loss in the left ear.  When level III hearing loss in the right ear is combined with level III hearing loss in the left ear and applied to Table VII for a percentage evaluation, the Veteran's hearing loss is evaluated as noncompensable.  38 C.F.R. § 4.85.

Based on the foregoing, the Board concludes that the preponderance of the evidence is against entitlement to a compensable rating for the Veteran's service-connected bilateral hearing loss disability.  Furthermore, the evidence preponderates against entitlement to staged ratings as there is no evidence of fluctuations in his hearing loss disability for the duration of the applicable rating period.  See Hart v. Mansfield, 21 Vet. App. 505, 509 (2007).  There is also no evidence of exceptional patterns of hearing impairment as described in 38 C.F.R. § 4.86.

The Board considered the Veteran's lay contentions pertaining to his hearing difficulties.  While he is competent to report symptoms, an objective examination is more probative in determining the actual degree of his hearing impairment.  Furthermore, the opinions and observations of the Veteran alone, as a layman, cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.85 with respect to determining the severity of his bilateral hearing loss disability.  The Board notes that while the Veteran's military occupation may have been a factor in determining entitlement to service-connection for a hearing loss disability, it is not a factor in considering his actual degree of hearing impairment.  See June 2013 Notice of Disagreement.  Accordingly, the Board assigns a low probative value to his contentions.

As a preponderance of the evidence is against the assignment of a compensable evaluation, the benefit-of-the-doubt rule does not apply, and the appeal is denied.  38 C.F.R. § § 4.3, 4.7.

Other Considerations

Ratings will generally be based on average impairment.  See 38 C.F.R. § 3.321(a), (b).  In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The United States Court of Appeals for Veterans Claims has set out a three-part test for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of his disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

Here, the schedular rating criteria specifically contemplate the extent and severity of the Veteran's service-connected bilateral hearing loss disability, which is primarily productive of difficulty localizing sound.  As such, the Board finds that the rating criteria are therefore adequate to evaluate the Veteran's current bilateral hearing loss, and referral for consideration of extraschedular rating is not warranted.  Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); VAOPGCPREC 6-96 (August 16, 1996).

Finally, the Veteran has not specifically argued, and the record does not otherwise reflect, that his service-connected hearing loss renders him totally unemployable.  Accordingly, the Board concludes that a claim for total rating based on unemployability due to service-connected disability has not been raised.  Rice v. Shinseki, 22 Vet. App. 447 (2009).


ORDER

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


REMAND

Additional evidentiary development is warranted before the issue of entitlement to an initial compensable disability rating for residuals of malaria can be properly adjudicated.  There has been no examination to date to determine the presence of any residual symptoms of the Veteran's malaria.  Private treatment records indicate that in April 2005, the Veteran had a confirmed diagnosis of mild anemia; however, it is not clear whether it is still current and/or symptomatic, and if so, whether it is related to his malaria.  

Any relevant outstanding VA treatment records should be associated with the claims file.  See Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following actions:

1.  Contact the Veteran to identify any pertinent private or VA treatment records that might be outstanding and associate them with the record.  Follow proper notification procedures.

2.  Schedule the Veteran for an appropriate VA examination to evaluate the presence of any residuals of malaria.  The examiner is requested to review all pertinent records associated with the electronic claims file and examination report should indicate that such records were reviewed.

The examiner is asked to comment on whether the Veteran has any current residuals from his malaria, to include liver or spleen damage, or anemia.

If the examiner cannot respond without resorting to speculation, she/he must explain why a response would be speculative.

3.  After the aforementioned has been completed, if the benefit sought remains denied, furnished a Supplemental Statement of the Case to the Veteran and provide a reasonable opportunity for a response before returning the record to the Board.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs