Citation Nr: 1617936	
Decision Date: 05/04/16    Archive Date: 05/13/16

DOCKET NO.  14-24 361	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to a compensable disability rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	North Carolina Division of Veterans Affairs


ATTORNEY FOR THE BOARD

A. Hampton, Associate Counsel







INTRODUCTION

The Veteran served on active duty from March 1970 to November 1971.  This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System (VBMS).


FINDING OF FACT

Throughout the period on appeal, the Veteran's hearing impairment has been no worse than Level I in the right ear and Level I in the left ear.


CONCLUSION OF LAW

The criteria for a compensable disability rating for bilateral hearing loss have not been 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

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2015), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  

They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 

The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

The Veteran was provided all required notice in an April 2013 letter, prior to the August 2013 rating decision on appeal.  

The record also reflects that all pertinent available service treatment records (STRs) and all available post-service medical evidence identified by the Veteran have been obtained.  The Veteran was afforded appropriate VA examinations to address the severity of his service-connected bilateral hearing loss in January 2012 and July 2013.  The Veteran has not asserted, and the evidence of record does not show, that his disability has increased significantly in severity since his most recent examination.  The Veteran was afforded an opportunity for a hearing before a Decision Review Officer or before the Board, but declined.

Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim.  The Board is also unaware of any such evidence.  Accordingly, the Board will address the merits of the Veteran's claim. 

General Legal Criteria:  Disability Ratings

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2015).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321(a), 4.1 (2015).  

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 (West 2014); 38 C.F.R. § 3.102 (2015); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 

Legal Criteria:  Bilateral Hearing Loss

Disability ratings for a hearing loss disability are derived from mechanical application of the rating schedule to the numeric designations resulting from audiometric testing.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).

The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination.  See 38 C.F.R. § 4.85 (2015).

An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test.  Examinations will be conducted without the use of hearing aids.  38 C.F.R. § 4.85(a) (2015).

Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns).  The Roman numeral designation is located at the point where the row and column intersect.  38 C.F.R. § 4.85(b) (2015).

Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average.  Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86.  38 C.F.R. § 4.85(c) (2015).

"Puretone threshold average" as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four.  This average is used in all cases (including those under § 4.86) to determine a Roman numeral designation from Tables VI and VIa.  38 C.F.R. § 4.85(d) (2015). 

Table VII, "Percentage Evaluations of Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear.  The horizontal rows represent the ear having the better hearing and the vertical columns represent the ear having the poorer hearing.  The percentage evaluation is located at the point where the row and the column intersect.  38 C.F.R. § 4.85(e) (2015).

Provisions for evaluating exceptional patterns of hearing impairment are as follows:

(a)  When the puretone thresholds at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz ) are 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;

(b)  When the puretone thresholds are 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; the numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86 (2015).

Analysis

In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2015) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability under appeal.  The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes.  Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability under review.  

By way of background, the Veteran was initially awarded service connection for bilateral hearing loss in a July 2012 rating decision, and a noncompensable evaluation was assigned.  In August 2012 the Veteran filed a claim seeking an increased rating for his service-connected bilateral hearing loss.  In the August 2013 rating decision on appeal, the noncompensable evaluation was continued.  

In response to his original service connection claim, the Veteran was afforded an initial VA audiological examination in January 2012; the examiner reviewed the evidence of record and noted the Veteran's history.  On examination, puretone thresholds were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
35
35
45
65
LEFT
35
35
60
70

Speech discrimination was 100 percent in the right ear and 96 percent in the left ear, and the examiner indicated that use of the speech discrimination scores was appropriate for the Veteran.

Applying the values above to Table VI results in a Level I Roman numeral designation for the right ear and a Level I Roman numeral designation for the left ear.  Application of a Level I designation and a Level I designation to Table VII results in a noncompensable rating.  In addition, the readings reported in this evaluation do not meet the requirements for evaluation as an exceptional pattern of impairment under 38 C.F.R. § 4.86 (2015).

A second VA audiological examination was conducted in July 2013.  At that examination the Veteran's puretone thresholds were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
40
40
45
60
LEFT
35
40
60
70

Speech discrimination was 98 percent in the right ear and 96 percent in the left ear, and the examiner indicated that use of the speech discrimination scores was appropriate for the Veteran.

Applying the values above to Table VI results in a Level I Roman numeral designation for the right ear and a Level I Roman numeral designation for the left ear.  Application of these Roman numeral designations to Table VII again results in a noncompensable rating.  In addition, the readings reported in this evaluation do not meet the requirements for evaluation as an exceptional pattern of impairment under 38 C.F.R. § 4.86 (2015).

The Court has held that, "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."  Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  In accordance with this decision, the January 2012 examiner noted that the Veteran's hearing loss impacted his daily life in the form of difficulty in understanding.  The July 2013 examiner noted the Veteran's reports that he was unable to carry on conversations with any background noise, he was unable to hear the TV at a normal level, he had difficulty hearing alarms and cell phones, and his hearing loss interfered with his job as a truck driver.   

On review of the record, it is evident that the criteria for a compensable rating under Diagnostic Code 6100 are not met.  Although the audiological evaluations clearly show the Veteran has hearing loss, the hearing loss has not yet met the compensable level under the rating schedule.  Thus, a compensable rating for bilateral hearing loss is not warranted under the schedular criteria. 

Other Considerations

VA must consider all favorable lay evidence of record.  38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board has accordingly considered the lay evidence offered by the Veteran, in the form of correspondence to VA, in addition to the medical evidence cited above.

The Veteran is competent to testify in regard to the onset and continuity of symptomatology.  Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, even affording the Veteran full competence and credibility, the evidence simply does not show entitlement to a higher rating under the applicable diagnostic code.  

Consideration has been given to assigning a staged rating for the disability decided herein, but for the reasons explained above the Board has determined that a noncompensable rating is warranted throughout the period on appeal.  See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Board has considered whether this case should be referred to the Director of the Compensation Service for extra-schedular consideration.  In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disabilities with the established criteria provided in the rating schedule for each disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required.  Thun v. Peake, 22 Vet. App. 111, 115 (2008). 

In this case, the Veteran's level of hearing impairment, as discussed above, is contemplated by the schedular criteria.  Therefore, the Board has no reason to believe that the average industrial impairment from the disability would be to a compensable degree.  Accordingly, referral of this claim for extra-schedular consideration under 38 C.F.R. § 3.321(b) (2015) is not in order. 


ORDER

A compensable rating for bilateral hearing loss is denied.



____________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs