Citation Nr: 1617488	
Decision Date: 05/02/16    Archive Date: 05/13/16

DOCKET NO. 10-18 588	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

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


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. MacDonald, Associate Counsel







INTRODUCTION

The Veteran had active duty service from February 1968 to June 1988.

This case comes before the Board of Veterans Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.

This issue was previously before the Board in June 2014, and was remanded for further development. Specifically, the Board requested updated VA treatment records be obtained, and the Veteran be provided with a new VA examination. Both of these requested actions were completed, and the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998).

In a March 2010 rating decision, the AOJ denied the Veteran's claim for tinnitus. The Veteran did not file a timely notice of disagreement, and this rating decision became final. However, in a June 2015 written statement, the Veteran references his claim for service connection for tinnitus. Therefore, a new claim for service connection for tinnitus has been raised by the record in a June 2015 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Board does not have jurisdiction over this issue, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015).


FINDING OF FACT

The Veteran demonstrated hearing acuity of level I in his right ear and no worse than Level VII in his left ear.





CONCLUSION OF LAW

The criteria for a compensable rating for service-connected bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.85, 4.86, Diagnostic Code 6100 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

VA has satisfied its duties under The Veteran's Claims Assistance Act of 2000 (VCAA) to notify and assist. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2015).

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). 

Required notice was provided by a letter dated October 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.

VA's duty to assist under the VCAA includes helping claimants to obtain service treatment records (STRs) and other pertinent records, including private medical records (PMRs). 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains VA treatment records and VA examination reports, and the Veteran has not indicated he received any relevant private treatment. The duty to obtain relevant records is satisfied. 38 C.F.R. § 3.159(c).

VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The VA examination and/or opinion must be adequate to decide the claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). 

The Veteran was provided with two VA examinations. The examiners noted the Veteran's self-reported medical history, interviewed him, and his disability in sufficient detail to enable the Board to make a fully informed decision. See Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion"). Thus, the VA examinations are adequate to decide the Veteran's claim.

The Veteran was also provided with an opportunity to testify at a hearing before the Board, but he declined.

Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. Consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error.

VA has satisfied its duties to notify and assist and the Board may proceed with appellate review.

Increased Rating for 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.

The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The assignment of a disability rating for hearing impairment is derived by a mechanical application of 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.
VA regulations also provide that Table VIA may be used to rate hearing impairment based only on puretone threshold average in two patterns of exception hearing impairment: when puretone thresholds at all four specified frequencies are 55 decibels or more and when puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. As will be discussed below, neither of these patterns of exception hearing impairment were reflected in the Veteran's audiometric testing, and evaluation under Table VIA is not applicable. Id.

Throughout the period on appeal, the Veteran has asserted his bilateral hearing loss has worsened in severity. For example, in his September 2009 written statement the Veteran asserted his hearing loss had increased in severity and warranted a compensable rating. His son also reported the Veteran's hearing had worsened, requiring him to repeat himself more often, and noticed his father turning up the volume on the TV. His wife also observed the Veteran's increased difficulties while hearing, especially on his left side.

In December 2009, the Veteran was provided with a VA examination. Although he was not able to review the Veteran's claims file, he personally interviewed the Veteran, and noted all relevant medical and factual history. 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
15
20
50
50
LEFT
35
55
75
85

The average pure tone threshold in the Veteran's right ear was 34 decibels, while the average pure tone threshold of his left ear was approximately 62 decibels. The examiner also administered the Maryland CNC word list pursuant to VA regulations, and the Veteran attained a 92 percent score in his right ear, and a 52 percent score in his left ear. 

Using Table VI, the Veteran's right ear pure tone threshold average of 34 decibels with word discrimination score of 92 percent equates to a level I impairment. A pure tone average in the left ear of 62 decibels with a word discrimination score of 52 percent equates to a level VII impairment. Under Table VII, a level I impairment in the better ear and level VII impairment in the worse ear equates to a noncompensable rating. 38 C.F.R. § 4.85. Accordingly, no higher rating was warranted.

Following his VA examination, VA treatment records reflect the Veteran continued to receive treatment, including hearing aids, for his bilateral hearing loss. In a written statement dated February 2010, the Veteran asserted his VA audiologist told him he had "significant" hearing loss of 75 percent in his left ear and 50 percent in his right. However, as discussed, VA regulations clearly provide that ratings for hearing loss shall be based on puretone threshold averages and the percent of word discrimination scores. Therefore, the Board is unable to assign a rating based on an audiologist's estimation of 75 percent or 50 percent hearing loss.

In August 2010, the Veteran's hearing acuity was evaluated by the VA medical facility. 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
15
25
55
40
LEFT
30
50
75
80

The average pure tone threshold in the Veteran's right ear was 34 decibels, while the average pure tone threshold of his left ear was approximately 60 decibels. The examiner also administered the Maryland CNC word list pursuant to VA regulations, and the Veteran attained a 92 percent score in his right ear, and a 72 percent score in his left ear. 


Using Table VI, the Veteran's right ear pure tone threshold average of 34 decibels with word discrimination score of 92 percent equates to a level I impairment. A pure tone average in the left ear of 60 decibels with a word discrimination score of 72 percent equates to a level VII impairment. As discussed, under Table VII, a level I impairment in the better ear and level VII impairment in the worse ear equates to a noncompensable rating. 38 C.F.R. § 4.85. Accordingly, no higher rating was warranted.

In a December 2010 written statement, the Veteran objected to his most recent hearing evaluation because the audiologist made him guess at all the words even if he didn't know what the word was. However, the evidence does not establish such a practice is outside of the routinely accepted procedure for evaluating word discrimination scores.

In September 2014, the Veteran was provided with an additional VA examination. This examiner reviewed the claims file, as well as personally interviewed and examined the Veteran. 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
20
30
55
55
LEFT
50
65
80
85

The average pure tone threshold in the Veteran's right ear was 40 decibels, while the average pure tone threshold of his left ear was approximately 70 decibels. The examiner also administered the Maryland CNC word list pursuant to VA regulations, and the Veteran attained a 100 percent score in his right ear, and an 80 percent score in his left ear. 

Using Table VI, the Veteran's right ear pure tone threshold average of 40 decibels with word discrimination score of 100 percent equates to a level I impairment. A pure tone average in the left ear of 70 decibels with a word discrimination score of 80 percent equates to a level IV impairment. Under Table VII, a level I impairment in the better ear and level IV impairment in the worse ear equates to a noncompensable rating. 38 C.F.R. § 4.85. Accordingly, no higher rating was warranted.

Based on the foregoing, the evidence does not establish the Veteran's bilateral hearing loss disability met the criteria associated with a compensable rating any point during the period on appeal, and his 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 understanding speech. These symptoms were specifically contemplated in the schedular ratings that were 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. However, the evidence does not suggest, and the Veteran has not asserted, that he is unable to work as a result of his service-connected bilateral hearing loss. Because there is no suggestion of unemployability due to the service-connected disability on appeal, the Board finds that Rice is not applicable.


ORDER

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



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs