Citation Nr: 1603767 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 14-09 529 ) 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: Oliver Jahizi, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Nelson, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran served on active duty from August 1955 to January 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decisions by Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which granted service connection for bilateral hearing loss and assigned a noncompensable (zero percent) disability rating effective June 15, 2011. In November 2015, the Veteran testified at a videoconference hearing before the undersigned and the transcript is of record. FINDING OF FACT For the entire period of appeal, the Veteran's bilateral hearing loss disability has been manifested by Level I hearing acuity in the right ear and Level I hearing acuity in the left ear. CONCLUSION OF LAW The criteria for the assignment of an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA notice letters must also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, the RO provided a notice letter to the Veteran in September 2011, prior to adjudication of the claim for service connection for bilateral hearing loss. The letter notified the Veteran of what information and evidence must be submitted to substantiate the claim for service connection, what information and evidence must be provided by the Veteran, and what information and evidence would be obtained by VA. The Veteran was told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence to the RO in support of his claim. The contents of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The Veteran's claim for a higher initial rating is a downstream issue, which was initiated by the notice of disagreement. The Court has held that, as in this case, once a notice of disagreement from a decision establishing service connection and assigning the rating and effective date has been filed, the notice requirements of 38 U.S.C.A. §§ 5104 and 7105 control as to the further communications with the appellant, including as to what "evidence [is] necessary to establish a more favorable decision with respect to downstream elements..." Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Thus, there is no duty to provide additional notice in this case with respect to the claim for an increased initial rating. The record establishes that the Veteran has been afforded a meaningful opportunity to participate in the adjudication of his claim. The Board notes that there has been no allegation from the Veteran or his representative that he has been prejudiced by any of notice defects. See Shinseki v. Sanders, 556 U.S. 396 (2009). Thus, there is no prejudice to the Veteran in the Board's considering this issue on its merits. The Board finds that the duty to notify provisions have been fulfilled with regard to the claim, and any defective notice is nonprejudicial to the Veteran and is harmless. The Board further finds that all relevant evidence has been obtained with regard to the Veteran's claim, and the duty to assist requirements have been satisfied. All available service treatment records (STRs) were obtained and VA medical records are associated with the claims file. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to this claim. The Veteran underwent VA examinations in March 2012 and March 2015 to obtain medical evidence regarding the severity of the hearing loss. These examination reports are adequate as the examiners reviewed the file, considered the Veteran's reported history, and conducted a thorough physical examination providing findings necessary to the decide the claim. The medical evidence of record contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal and is adequate for purposes of this appeal, as it is competent medical evidence pertaining to the question of current disability to decide the claim. See McLendon v. Nicholson, 20 Vet App. 79, 81 (2006) (a VA examination or opinion is necessary where there other criteria are met and there is "insufficient competent medical" evidence for VA to decide the claim). The Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the duties to notify and assist the Veteran have been met, so no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Law and Regulations Where the evaluation of hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of bilateral 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 1,000, 2,000, 3,000 and 4,000 Hertz. The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through level XI for profound deafness. 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). Under 38 C.F.R. § 4.85, 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 percentage of speech discrimination and puretone average intersect. 38 C.F.R. § 4.85(b). The puretone threshold average is the sum of the puretone thresholds at 1,000, 2,000, 3,000 and 4,000 Hertz, divided by 4. This average is used in all cases to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.85(d). 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 Alternatively, VA regulations provide that in cases of exceptional hearing loss, when the puretone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 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. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 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 higher Roman numeral. Each ear will be evaluated separately. Table VIA Numeric designation of hearing impairment based only on 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 The findings for each ear from either Table VI or Table VIA, are then applied to Table VII (Percentage Evaluations for Hearing Impairment) 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 poor hearing. The percentage evaluation is located at the point where the rows and column intersect. 38 C.F.R. § 4.85(e). Table VII Percentage evaluation for hearing impairment (diagnostic code 6100) Poorer 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 Initial Rating for Bilateral Hearing Loss The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the assignment of a compensable disability rating for the service-connected bilateral hearing loss at any time during the appeal period. Upon VA audiometric evaluation in March 2012, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 average RIGHT EAR 35 40 45 45 41.25 LEFT EAR 40 40 50 50 42.5 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 94 percent in the left ear. The findings of the March 2012 evaluation translate to Level I hearing loss in the right ear and Level I hearing loss in the left ear when applied to Table VI of the rating schedule. This level of hearing loss warrants a zero percent rating and no higher under Table VII of the rating schedule. Therefore, an initial compensable disability evaluation is not warranted under Diagnostic Code 6100. See 38 C.F.R. § 4.85, Diagnostic Code 6100. In June 2013, the Veteran had an audiology consultation at VA. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 average RIGHT EAR 40 50 55 55 50 LEFT EAR 50 45 55 45 48.75 The audiologist indicated that the Veteran had normal hearing sensitivity through 750 hertz, mild to moderate sensorineural hearing loss at 1000-8000 hertz in the right ear, and moderate to severe sensorineural hearing loss at 1000-8000 hertz in the left ear. The Veteran was scheduled for a hearing aid evaluation. Upon VA audiometric evaluation in March 2015, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT EAR 50 55 55 55 56.25 LEFT EAR 50 55 55 55 53.75 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 94 percent in the left ear. Although the June 2013 evaluation and the March 2015 examination indicate that the Veteran's hearing has declined, the findings nonetheless still translate to Level I hearing loss in the right ear and Level I hearing loss in the left ear when applied to Table VI of the rating schedule. This level of hearing loss warrants a zero percent rating and no higher under Table VII of the rating schedule. Therefore, a compensable disability evaluation is not warranted under Diagnostic Code 6100 for any period of the appeal. See 38 C.F.R. § 4.85, Diagnostic Code 6100. In sum, for the reasons expressed, a compensable disability evaluation is not warranted for the bilateral hearing loss under Diagnostic Code 6100 at any time during the appeal period. The Board considered the provisions for paired organs under 38 C.F.R. § 3.383; however as neither ear's hearing loss is compensable to a degree of 10 percent or more, this regulation does not apply. 38 C.F.R. § 3.383 (a)(3). Because the preponderance of the evidence weighs against the claim, the benefit of the doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Accordingly, the claim of an increased rating for bilateral hearing loss is denied. Extraschedular Consideration The Board has considered whether referral for an "extraschedular" evaluation is warranted. In exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § 3.321. 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 the service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the rating schedule and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate a Veteran's level of disability and symptomatology and is found inadequate, it must determine whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step, a determination of whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, the evidence fails to show unique or unusual symptomatology regarding the Veteran's service-connected disability that would render the schedular criteria inadequate. The Veteran's symptoms, including having a hard time understanding what people are saying and turning up the volume on the television, are contemplated in the ratings assigned; thus, the application of the Rating Schedule is not rendered impractical. Moreover, the Veteran has not argued that his symptoms are not contemplated by the rating criteria; rather, he merely disagreed with the assigned disability ratings for his level of impairment. In other words, he does not have any symptoms from his service-connected disability that are unusual or different from those contemplated by the schedular criteria. Moreover, the Veteran has not alleged or indicated that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Accordingly, the Board finds that referral for consideration of an extraschedular rating is not warranted, as the manifestations of the Veteran's disability are considered by the schedular rating assigned. 38 C.F.R. § 3.321; Thun, 22 Vet. App. 111. ORDER An initial compensable rating for bilateral hearing loss is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs