Citation Nr: 1604103	
Decision Date: 02/04/16    Archive Date: 02/11/16

DOCKET NO.  10-05 450	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to a compensable rating for service-connected bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A. MacDonald, Associate Counsel







INTRODUCTION

The Veteran had active service from July 1965 to July 1969.

This appeal comes to the Board of Veterans' Appeals (Board) from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

This issue was previously before the Board in July 2013 and was remanded for further development.  Specifically, the Board requested a new VA examination be provided.  The requested action was completed and the matter has been properly returned to the Board for appellate consideration.  See Stegall v. West, 11 Vet. App. 268 (1998).

The Board notes that in his January 2016 written brief, the Veteran's representative expressed disagreement with the September 2013 Rating Decision which found the Veteran's claim for entitlement to total disability based on individual unemployability (TDIU) was moot.  However, as the rating decision was issued well more than a year before the January 2016 written brief, the rating decision has since become final.  Accordingly, if the Veteran's representative wishes to further pursue the claim for entitlement to TDIU, he is invited to file a new claim.

This appeal was processed using the VBMS paperless claims processing system.  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.


FINDING OF FACT

The Veteran did not demonstrate compensable hearing loss at any point during the period on appeal.




CONCLUSION OF LAW

The criteria for a compensable rating for bilateral hearing loss have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.85, Diagnostic Code (DC) 6100, 4.86 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran is seeking an increased rating for his service-connected bilateral hearing loss.  Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized.  38 C.F.R. § 4.1.  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work.  38 C.F.R. § 4.2.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.

Under the regulations the assignment of a disability rating for hearing impairment is derived by applying the results of audiometric evaluations to tables included in the rating schedule.  38 C.F.R. § 4.85.  Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on 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 audiometric tests at the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz).  To evaluate the degree of disability from bilateral defective hearing, the rating schedule establishes eleven auditory acuity levels designated from level I, for essentially normal acuity, through level XI, for profound deafness.  Id.

When the pure tone threshold 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.  38 C.F.R. § 4.86(a).  Similarly, if the pure tone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz, 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, and that numeral will be elevated to the next higher Roman numeral.  

Table VIA, "Numeric Designation of Hearing Impairment Based Only on Pure Tone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the pure tone threshold average.  Table VIA will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of Section 4.86, described in the preceding paragraph.  38 C.F.R. § 4.85(c).  

Throughout the period on appeal, the Veteran has asserted that his hearing loss has increased in severity and requires him to turn up the volume on all devices.  VA treatment records reflect the Veteran is currently assigned hearing aids, and had to have them adjusted on several occasions throughout the period on appeal.

The Veteran was provided with a VA examination in May 2009.  Audiometric testing was conducted, and the relevant results are summarized in the chart below, with pure tone threshold recorded in decibels.



HERTZ



1000
2000
3000
4000
RIGHT
45
55
65
75
LEFT
35
55
80
90


The average pure tone threshold in the Veteran's right ear was approximately 60 decibels, while the average pure tone threshold in the Veteran's left ear was approximately 65 decibels.  The physician also administered the Maryland CNC word list pursuant to VA regulations.  See 38 C.F.R. § 4.85.  The Veteran attained a 96 percent score in both ears.

A pure tone average threshold of 60 in the right ear with a 96 percent speech discrimination score equates to level II hearing acuity.  38 C.F.R. § 4.85, Table VI.  A pure tone average threshold of 65 decibels in the left ear with a 96 percent speech discrimination relates to a level II hearing acuity.  Id.  Level II rating in both ears equates to a noncompensable rating for hearing impairment.  38 C.F.R. § 4.85, Table VII.

Table VIA is not applicable in this case because the testing results were not 55 decibels or more at each of the four specified frequencies (1000, 2000, 3000 and 400 Hertz) in either ear, nor was the Veteran's pure tone threshold more than 70 decibels at 2000 Hertz in either ear.  Furthermore, nothing in the record suggests the speech discrimination test was not appropriate for the Veteran.  Therefore the regulatory requirements for use of Table VIA were not met.

In his November 2009 Notice of Disagreement, the Veteran asserted that his VA audiologist told him his hearing was so severe he couldn't use the "small type" hearing aids, but instead had to use the "large ones with outside volume."  The medical records confirm the Veteran's assertion, and reflect his VA audiologist found his level of hearing loss required "advanced digital itc" hearing aids.  See September 2009 VAT treatment record.  However, requiring the use of hearing aids, or specific type of hearing aids, does not constitute entitlement to a hearing rating for hearing loss under VA regulations.

In May 2011, the Veteran's VA audiologist evaluated his hearing loss.  The physician stated he performed a full audiologic evaluation, but the results are not included in the claims file.  However, the physician summarized the Veteran had average thresholds of 40 decibels in both ears, and the results of word discrimination testing was 100% in either ear.  A pure tone average threshold of 40 with a 100 percent speech discrimination score in both ears equates to a level I hearing acuity.  38 C.F.R. § 4.85, Table VI.  Level I rating in the both ears equates to a noncompensable rating for hearing impairment.  38 C.F.R. § 4.85, Table VII.

The Veteran's hearing was again evaluated by his VA audiologist in January 2013.  Again, although the full results from this testing were not included in the medical record, the physician opined the Veteran had speech awareness threshold of 50 decibels and speech discrimination score of 92 percent in both ears.  A pure tone average threshold of 50 with a 92 percent speech discrimination score in both ears equates to a level I hearing acuity.  38 C.F.R. § 4.85, Table VI.  Level I rating in the both ears again equates to a noncompensable rating for hearing impairment.  38 C.F.R. § 4.85, Table VII.

In November 2013, the Veteran was provided with an additional VA examination.  Audiometric testing was conducted, and the relevant results are summarized in the chart below, with pure tone threshold recorded in decibels.



HERTZ



1000
2000
3000
4000
RIGHT
45
40
60
75
LEFT
35
45
75
95

The average pure tone threshold in the Veteran's right ear was approximately 55 decibels, while the average pure tone threshold in the Veteran's left ear was approximately 63 decibels.  The physician also administered the Maryland CNC word list pursuant to VA regulations.  See 38 C.F.R. § 4.85.  The Veteran attained a 94 percent score in his right ear, and a 96 percent score in his left ear.  

A pure tone average threshold of 55 in the right ear with a 94 percent speech discrimination score equates to level I hearing acuity.  38 C.F.R. § 4.85, Table VI.  A pure tone average threshold of 63 decibels in the left ear with a 96 percent speech discrimination relates to a level II hearing acuity.  Id.  Level I rating in the better ear and level II rating in the worse ear equates to a noncompensable rating for hearing impairment.  38 C.F.R. § 4.85, Table VII.
Table VIA is not applicable in this case because the testing results were not 55 decibels or more at each of the four specified frequencies (1000, 2000, 3000 and 400 Hertz) in either ear, nor was the Veteran's pure tone threshold more than 70 decibels at 2000 Hertz in either ear.  Furthermore, nothing in the record suggests the speech discrimination test was not appropriate for the Veteran.  Therefore the regulatory requirements for use of Table VIA were not met.

The Board notes that, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that, relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  In this case, the Board acknowledges that the May 2009 examiner did not describe the functional effects caused by the Veteran's hearing disability in his report, and therefore did not comply with the requirements of Martinak.  However, the November 2013 examiner specifically noted the effects of the Veteran's current hearing loss on his usual occupation and daily activities were difficulties hearing conversation with background noise, difficulty understanding some words over the phone, difficulty hearing at a distance from a sound source, and difficulty hearing when there are multiple talkers.  Therefore, although the initial May 2009 examination was not compliant, in his most recent VA examination the Veteran was provided with an examination that was compliant with the Martinak requirements.

The claims file does not include any other results from audiometric testing conducted on either or both ears.  Accordingly, based on all the foregoing, the criteria for a compensable rating for service-connected bilateral hearing loss have not been met at any point during the period on appeal, the Veteran's appeal is denied.

The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made.  38 C.F.R. § 3.321(b)(1).  The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry.  Thun v. Peake, 22 Vet. App. 111 (2008).  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.  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.  If the criteria do not reasonably describe the veteran's disability level and symptomatology, a determination must be made 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").  See id. 

However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's hearing loss that would render the schedular criteria inadequate.  The Veteran's main symptoms were complaints of difficulties hearing and requiring the use of hearing aids.  These symptoms were specifically contemplated in the schedular rating that was assigned.  In this regard and consistent with the reasoning presented above, the Board finds that the rating schedule is adequate, even in regard to the collective and combined effect of all of the Veteran's service connected disabilities, and that referral for extraschedular consideration is not warranted under the circumstances of this case.  Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. Aug. 6, 2014).  

The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised.  The Board acknowledges that the Veteran has not worked since May 2012.  He has not, however, alleged that he is unemployable on account of his service connected bilateral hearing loss, but rather maintained that he is unable to work due to unrelated issues, including his posttraumatic stress disorder.  Moreover, in his November 2013 report, the VA examiner specifically opined the Veteran's service-connected hearing loss and tinnitus alone would not prevent him from securing and maintaining substantially gainful employment.  Thus, the Board finds that Rice is inapplicable since there is no evidence of unemployability due to the Veteran's service-connected hearing loss.

Duties to Notify and Assist

Under applicable criteria, VA has certain notice and assistance obligations to veterans.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  

Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must:  (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).  

In the present case, required notice was provided by a letter dated in May 2009, which informed the Veteran of all the elements required by the Pelegrini II Court prior to initial AOJ adjudication.  The letter also informed the Veteran how disability ratings and effective dates were established.  Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content.

As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  Service treatment and post-service VA treatment records have been obtained.  In his December 2009 written substantive appeal, the Veteran asserted he would soon be filing the results of a private audiometric evaluation.  However, to date such results have not been received.  The VA specifically requested the Veteran to submit the report from this private evaluation in an August 2013 letter, however no response from the Veteran was received.  The duty to assist is not a one-way street.  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  Therefore, without the Veteran's participation, no further steps are required of the VA to obtain these potentially relevant private records.

Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. 

The Veteran was also provided with two VA examinations, the reports of which have been associated with the claims file.  The Board finds the VA examinations were thorough and adequate, and provided a sound basis upon which to base a decision with regard to the Veteran's claim.  The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability.  Furthermore, neither the Veteran nor his representative has voiced any issue with the adequacy of the examinations.

As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal.


ORDER

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




____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs