Citation Nr: 1607060 Decision Date: 02/24/16 Archive Date: 03/01/16 DOCKET NO. 14-24 985A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an increased initial rating for bilateral hearing loss, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD S. Spitzer, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1979 to June 1992. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT The most probative evidence indicates the Veteran's hearing loss has been manifested by, at worst, Level V hearing loss in the right ear and Level IV hearing loss in the left ear. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for service-connected bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). This appeal arises from the Veteran's disagreement with the initial evaluation assigned following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In addition, the Board finds that the duty to assist a claimant has been satisfied. The Veteran's service treatment records and service personnel records are on file, as are various post-service medical records, lay statements, and a VA examination report. After a careful review of the file, 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). II. Analysis The Veteran is seeking an initial rating in excess of 10 percent for bilateral hearing loss, service connection for which was granted effective February 27, 2013. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history; reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an award of service connection for that disability, separate, or "staged," ratings can be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled speech discrimination test (Maryland CNC) together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from service-connected defective hearing, the rating schedule establishes 11 auditory hearing acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI, for profound deafness. 38 C.F.R. §§ 4.85, Tables VI and VII, Diagnostic Code 6100 (2015). Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. In that situation, 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. 38 C.F.R. § 4.86(a) (2015). Further, when the average puretone 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 considered separately. 38 C.F.R. § 4.86(b). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). After review of the evidence of record, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's service-connected bilateral hearing loss at any time during the period under review. While treatment records indicate that the Veteran receives private and VA hearing treatment, the only audiometric findings valid for rating purposes are those obtained in the VA examination report discussed below. The VA audiogram conducted in conjunction with the January 2014 VA QTC (contract) examination report showed puretone thresholds of 55, 65, 65, and 60 decibels in the right ear, and 50, 60, 60, and 55 decibels in the left ear at 1000, 2000, 3000, and 4000 Hertz ("specified frequencies"). Average puretone thresholds were 61 decibels in the right ear and 56 decibels in the left. Speech audiometry revealed speech recognition ability of 72 percent in the right ear and 76 percent in the left ear. Applying the results from that examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level V hearing loss in the right ear and Level IV hearing loss in the left ear. Since the right ear exhibits an exceptional pattern of hearing loss pursuant to 38 C.F.R. § 4.86(b), the audiological results for that ear were also applied to Table VIA, resulting in a finding of Level IV hearing loss. As the results under Table VIA are less favorable for the right ear than the results using Table VI, Table VI will be applied. Where hearing loss is at Level V in the poorer ear and Level IV in the better ear, a 10 percent rating is assigned under Table VII. The Board notes that the record contains an October 2013 private audiogram report, but finds that it cannot serve as the basis for a rating in excess of 10 percent. That audiogram report showed puretone thresholds of 60, 70, 70, and 70 decibels in the right ear and 45, 55, 55, and 50 decibels in the left ear at the specified frequencies. Average puretone thresholds were 68 decibels in the right ear and 51 decibels in the left. This audiogram is invalid for rating purposes because it did not include a controlled speech discrimination test in accordance with 38 C.F.R. § 4.85(a). However, even considering the findings, solely for the sake of argument, under Table VIA results in a finding of Level V hearing loss in the right ear and Level III hearing loss in the left ear, equating to a 10 percent rating under Table VII. Thus, a higher rating would not be warranted on the basis of this audiogram report. In short, although the Board sympathizes with the Veteran's complaints and the statements provided by his friend and stepdaughter regarding the functional impact of his hearing loss on his daily life, including difficulty hearing televisions, radios, telephones, and conversations when unable to face the speaker, as well as requiring hearing aids and greater reliance on written communication, the assignment of disability ratings for hearing impairment is derived from a mechanical formula based on levels of puretone threshold average and speech discrimination. Thus, the medical evidence of record is more probative than lay contentions as to the extent of the Veteran's hearing loss. The Board finds the VA examination highly probative, and notes that it was conducted in accordance with 38 C.F.R. § 4.85(a). Moreover, the VA examiner reported the effects of the Veteran's hearing loss on his daily activities and occupational functioning. Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extraschedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2015); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the established schedular criteria are inadequate to describe the severity and symptoms of the claimant's disability. See Thun v. Peake, 22 Vet. App. 111, 118 (2008). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology related to his hearing loss, and provide for consideration of greater disability than currently shown by the evidence. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 118 (2008). Consequently, referral for extra-schedular consideration is not warranted. Finally, the Veteran has not asserted that his hearing loss has rendered him unemployable, nor does the evidence suggest such. Thus, the Board finds that a claim for a total disability rating based on individual unemployability has not been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In summary, the most probative evidence of record fails to demonstrate that a rating in excess of 10 percent is warranted for the Veteran's service-connected bilateral hearing loss. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-57. ORDER An initial disability rating in excess of 10 percent for bilateral hearing loss is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs