Citation Nr: 1605970 Decision Date: 02/17/16 Archive Date: 03/01/16 DOCKET NO. 09-12 948 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from August 1988 to December 1991. This appeal initially came before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from an August 2007 rating decision of the VA Regional Office (RO) in Pittsburgh, Pennsylvania. This issue was previously remanded by the Board in December 2010 and June 2014. It has been returned to the Board. The Veteran was afforded a Travel Board hearing in September 2010 before the undersigned Veterans Law Judge sitting at Pittsburgh, Pennsylvania. The transcript is of record. Records are all contained in Virtual VA and Veterans Benefits Management System (VBMS) electronic files. FINDINGS OF FACT The Veteran has had no more than Level III hearing in the each ear since the grant of service connection. CONCLUSION OF LAW The criteria for an initial compensable evaluation for bilateral hearing loss disability are not met. 38 U.S.C.A. §1155 (West 2014); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Because service connection, an initial rating, and an effective date have been assigned, the notice requirements of the VCAA have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed.Cir. 2007). Consequently, discussion of VA's compliance with VCAA notice requirements as they relate to the claim for a higher rating for bilateral hearing loss disability would serve no useful purpose. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to evaluate the claim of entitlement to a compensable rating for bilateral hearing loss. Information has been secured in support of the claim and the appellant has been afforded a number of VA examinations. The evidence is adequate to render a determination as to the issue on appeal. 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. § 3.156(c). This claim is ready to be considered on the merits. Pertinent Law and Regulations Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Service connection for bilateral hearing loss was granted by rating decision in August 2007, effective from June 2007. A noncompensable disability rating was assigned. 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 audiometry tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second, with 11 auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85. In addition to the hearing loss criteria above, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa [C.F.R. § 4.85], whichever results in the higher numeral. 38 C.F.R. § 4.86(a). When the pure tone threshold is 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 higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). Factual Background Review of the record discloses that the Veteran underwent VA audiology evaluation in June 2007. He complained of bilateral hearing difficulty primarily with background noise condition, frequent misunderstanding of speech and trouble with conversations over the telephone. On audiometric evaluation, pure tone thresholds in the right ear were 20/30/50/75 and 15/20/55/85 in the left at the 1000/2000/4000 Hertz frequencies, respectively. Speech discrimination was 100 percent in the right ear and 100 percent on the left. On VA audiology evaluation for compensation and pension purposes in September 2008, pure tone thresholds in the right ear were 20/30/60/70 and 20/25/65/90 in the left at the 1000/2000/3000/4000 Hertz frequencies, respectively. Speech discrimination was 98 percent in the right ear and 96 percent on the left. The appellant underwent a VA audiology examination in February 2011 where pure tone thresholds in the right ear were 30/50/75/80 and 30/50/80/95 in the left at the 1000/2000/3000/4000 Hertz frequencies, respectively. Speech discrimination was 90 percent in the right and left ears. The appellant was afforded VA audiology consultation in July 2010, where he was discovered to have pure tone thresholds in the right ear of 40/40/80/100 and 20/25/65/90 in the left at the 1000/2000/3000/4000 Hertz frequencies, respectively. Speech discrimination was 84 percent in each ear. The Veteran was most recently afforded a compensation audiology evaluation in June 2014. The results obtained were pure tone thresholds of 25/50/75/80 and 30/45/70/100 at the 1000/2000/3000/4000 Hertz frequencies, respectively. Speech discrimination was 84 percent, bilaterally. Legal Analysis The Board has carefully considered the Veteran's testimony and contentions attesting to more severe defective hearing. However, the evidentiary record, to include current lay and clinical evidence, does not support a basis to find that hearing loss disability approximates the criteria for a higher rating during the course of the appeal. The audiometric findings for each date will be analyzed separately. It is shown that the audiometric values obtained in June 2007 are consistent with pure tone threshold averages of 44 decibels in each ear. With speech discrimination of 100 percent in the right and left ears, these clinical findings correlate to an auditory acuity numeric designation of Level I hearing impairment in both ears (See 38 C.F.R. § 4.85, Tables VI and VII) which is no more than zero percent disabling. Additionally, the pure tone thresholds at each of the relevant audiometric frequencies were not all 55 decibels or more, or 30 decibels or less at 1000 Hertz and 70 decibels or more at the 2000 Hertz frequency. Therefore, the appellant did not meet the criteria for a higher disability evaluation under 38 C.F.R. § 4.86(a) or § 4.86(b) for exceptional hearing impairment in the right and left ears in June 2007. The audiometric findings obtained in September 2008 are consistent with pure tone threshold averages of 45 decibels in the right ear and 50 decibels in the left ear. With speech discrimination of 98 percent in the right ear and 96 percent on the left, these clinical findings correlate to an auditory acuity numeric designation of Level I hearing impairment in both ears (See 38 C.F.R. § 4.85, Tables VI and VII) that comports with no more than a zero percent disability rating. Additionally, each ear did not exhibit pure tone thresholds of 55 decibels or more at each applicable frequency, or 30 decibels or less at 1000 Hertz and 70 decibels or more at the 2000 Hertz frequency. Thus, the appellant did not meet the criteria for a higher disability evaluation under 38 C.F.R. § 4.86(a) or § 4.86(b) for exceptional hearing impairment in the right and left ears in September 2008. The audiometric findings obtained in February 2011 are consistent with pure tone threshold averages of 59 decibels in the right ear and 64 decibels in the left ear. With speech discrimination of 90 percent in each ear, these clinical findings are consistent with an auditory acuity numeric designation of Level III hearing impairment in both ears (See 38 C.F.R. § 4.85, Tables VI and VII) that comports with no more than a zero percent disability rating. Additionally, each ear did not exhibit pure tone thresholds of 55 decibels or more at the applicable frequencies, or 30 decibels or less at 1000 Hertz and 70 decibels or more at the 2000 Hertz frequency. As such, exceptional hearing impairment is not demonstrated for the right and left ears in February 2011. The audiometric values demonstrated on VA audiology consultation in July 2010 reflect pure tone threshold averages of 68 decibels in the right ear and 60 decibels in the left ear. With speech discrimination of 84 percent in each ear, the clinical findings correlate to an auditory acuity numeric designation of Level III hearing impairment in the right and left ears (See 38 C.F.R. § 4.85, Tables VI and VII) that comports with no more than a zero percent disability rating. Additionally, each ear did not exhibit pure tone thresholds of 55 decibels or more at each applicable frequency, or 30 decibels or less at 1000 Hertz and 70 decibels or more at the 2000 Hertz frequency. Thus, the appellant did not meet the criteria for a higher disability evaluation under 38 C.F.R. § 4.86(a) or § 4.86(b) for exceptional hearing impairment in the right and left ears in July 2010. Results obtained on most recent VA examination in June 2014 reflect pure tone threshold averages of 56 decibels in the right ear and 61 decibels in the left ear. With speech discrimination of 84 percent in each ear, these clinical findings correlate to an auditory acuity numeric designation of Level II hearing impairment in the right ear and Level III hearing in the left ear (See 38 C.F.R. § 4.85, Tables VI and VII) that correspond to no more than a zero percent disability rating. Additionally, each ear did not exhibit pure tone thresholds of 55 decibels or more at each applicable frequency, or 30 decibels or less at 1000 Hertz and 70 decibels or more at the 2000 Hertz frequency. Therefore, the appellant does not meet the criteria for a higher disability evaluation under 38 C.F.R. § 4.86(a) or § 4.86(b) for exceptional hearing impairment in the right and left ears in June 2014 The record thus reflects that although the appellant's hearing appears to be declining to some extent, none of the audiometric findings obtained on VA compensation and pension examinations over the years has resulted in a compensable evaluation under the applicable criteria for VA hearing loss disability. The Veteran is advised that hearing impairment by VA standards is calibrated on controlled speech discrimination tests, together with the average hearing threshold levels, as measured by pure tone audiometry tests. The assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed and is not amenable to subjective interpretation. See Lendenmann v. Principi, 3 Vet. App. 345. Therefore, according to the rating schedule, the severity of the Veteran's hearing loss as demonstrated on examinations between 2007 and 2014 is no more than zero percent disabling. Under the circumstances, the appellant has not been entitled to more than a noncompensable rating for right and left ear hearing loss since the grant of service connection and a higher initial rating is denied. See Fenderson v. West, 12 Vet. App. 119 (1999). Finally, the Board has considered whether referral for extraschedular consideration is warranted for a higher rating. However, there is no indication of an exceptional disability picture such that the schedular evaluations for the service-connected bilateral hearing loss are inadequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). There is no objective evidence demonstrating that the service-connected disability under consideration markedly interferes with employment beyond that contemplated by the rating schedule. The evidence reflects that the relative manifestations and the effects of the disability have been fully considered and are contemplated by the rating schedule. Therefore, referral for an extraschedular rating is not necessary. Thun. As such, the criteria for referral for an extraschedular rating pursuant to § 3.321(b) (1) (2015) are not met at this time. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In sum, the Board finds no probative audiological evidence to support a higher rating for bilateral hearing loss disability during the appeal. The preponderance of the evidence is against the claim and the benefit-of-the-doubt rule is not for application. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3 (2015); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER An initial compensable evaluation for bilateral hearing loss disability is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs