Citation Nr: 1613905	
Decision Date: 04/05/16    Archive Date: 04/13/16

DOCKET NO.  14-28 025	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota


THE ISSUE

Entitlement to a compensable evaluation for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	South Dakota Department of Veterans Affairs


ATTORNEY FOR THE BOARD

 James R. Siegel, Counsel


INTRODUCTION

The Veteran served on active duty from July 1957 to May 1961.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision of the Sioux Falls, South Dakota Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for bilateral hearing loss and assigned a noncompensable rating effective June 28, 2013.  The Veteran disagreed with the assigned rating.  In July 2015, the Board remanded the claim for additional development of the record.

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).


FINDING OF FACT

The Veteran has Level II hearing in the right ear and, at worst, Level III hearing in the left ear.


CONCLUSION OF LAW

The criteria for a compensable rating for 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 FINDINGS AND CONCLUSION

Veterans Claims Assistance Act (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  

This matter was filed as a "Fully Developed Claim" (FDC) pursuant to VA's program to expedite claims.  Under this framework, a claim is submitted in a "fully developed" status, limiting the need for further development of the claim by VA.  When filing a FDC, a Veteran is to submit all evidence relevant and pertinent to his claim other than service treatment records and treatment records from VA medical centers, which will be obtained by the VA.  Under certain circumstances, additional development may still be required prior to the adjudication of the claim, such as obtaining additional records and providing a VA medical examination to the Veteran.  See VA Form 21-526EZ.

The notice that accompanies the FDC form informs the Veteran of what evidence is required to substantiate a claim for service connection and of the Veteran's and VA's respective duties for obtaining evidence.  The notice also provides information on how VA assigns disability ratings in the event that service connection is established.  See VA Form 21-526EZ.  Thus, the notice that is part of the claim form submitted by the Veteran satisfies the VCAA duty to notify.

The Veteran's private and VA medical records have been secured.  The Veteran was afforded pertinent VA examinations.  VA's duty to assist is met.

VA outpatient treatment records show the Veteran was seen in the audiology clinic in August 2013 and reported he was not using his hearing aids because of occlusion and that he was hearing background noise more than speech.  He denied any major changes in his hearing since the last evaluation in 2011.  Following testing, the examiner indicated there were minimal changes in the Veteran's hearing.

The Veteran was afforded a VA audiometric examination in December 2013.  An audiogram disclosed that the hearing threshold levels in decibels in the right ear were 45, 50, 70 and 75 at 1,000, 2,000, 3,000 and 4,000 Hertz, respectively.  At corresponding frequencies in the left ear, the hearing threshold levels in decibels were 40, 65, 75 and 75.  Speech audiometry revealed speech recognition ability of 94 percent in each ear.  The examiner stated the Veteran had a sensorineural hearing loss in each ear.  She indicated that the functional impact of the Veteran's hearing loss on his daily life, to include his ability to work was that it made it difficult to understand conversations.

The Veteran submitted the report of a private audiogram conducted in May 2014.  

A VA audiometric examination was again conducted in October 2015.  The audiogram showed that the hearing threshold levels in decibels in the right ear were 45, 50, 65 and 80 at 1,000, 2,000, 3,000 and 4,000 Hertz, respectively.  At corresponding frequencies in the left ear, the hearing threshold levels were 45, 70, 75 and 80.  Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 88 percent in the left ear.  It was noted the Veteran had a bilateral sensorineural hearing loss.  The examiner stated that the Veteran's hearing loss impacted his activities of daily living since he had difficulty understanding family members and female voices at times.

Disability evaluations are determined by the application of a schedule of ratings which 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.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are:  interpreting examination reports 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; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Where the appeal is from the initial rating assigned with the award of service connection, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999).

The severity of hearing loss disability is determined for VA rating purposes by the application of criteria set forth in 38 C.F.R. § 4.85, Code 6100, and § 4.86, of VA's Schedule for Rating Disabilities.  Under those criteria, evaluations of bilateral defective hearing range from 0 to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average pure tone threshold level as measured by pure tone audiometry tests in the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz.  The degree of disability for bilateral service-connected defective hearing is ascertained by the application of the rating schedule, which establishes 11 auditory acuity levels, ranging from Level I (for essentially normal acuity) through Level XI (for profound deafness) to the findings on official audiometry.  See 38 C.F.R. § 4.85; See also Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

The Board acknowledges the Veteran submitted a May 2014 private audiometric evaluation.  Since it was not conducted in accordance with the provisions of 38 C.F.R. § 4.85(a), it may not be considered in rating the Veteran's bilateral hearing loss. 

Applying 38 C.F.R. § 4.85 Table VI to the findings on the December 2013 VA audiometric examination establishes that the Veteran has Level II hearing acuity in each ear.  The October 2015 VA audiometric examination revealed the Veteran had Level II hearing in the right ear and Level III hearing in the left ear.  These results correspond to a noncompensable evaluation for the Veteran's bilateral hearing loss.  The Board finds the examinations to have been adequate for rating purposes.  They were conducted in accordance with regulatory criteria, and the examiner specifically commented on any functional impairment that results from the hearing loss shown.  The examiner acknowledged that the Veteran's hearing loss would affect his ability to understand conversations.  See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007).

The Veteran is competent to report symptoms he experiences, including difficulty hearing, and the Board finds him to be credible.  However, his own reports do not satisfy the schedular criteria for a compensable rating for bilateral hearing loss.  Accordingly, the Board concludes that the preponderance of the evidence is against the claim for a compensable rating for bilateral hearing loss.

The Board has considered whether referral of this matter for consideration of an extraschedular rating is warranted, but finds that all identified symptoms and impairment associated with the Veteran's bilateral hearing loss are encompassed by the schedular criteria for the rating now assigned.  He has not alleged any impairment of function that is not encompassed by schedular criteria.  Therefore, the schedular criteria are not inadequate and referral for consideration of an extraschedular rating is not necessary.  Thun v. Peake, 22 Vet. App. 111 (2008).  

Finally, there is no indication or allegation that the Veteran's bilateral hearing loss prevents him from being gainfully employed.  There is no indication in the evidence of record that by virtue of his hearing loss he is rendered incapable of gainful employment.  


ORDER

A compensable evaluation for bilateral hearing loss is denied.



____________________________________________
KELLI A. KORDICH
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs