Citation Nr: 1627850 Decision Date: 07/13/16 Archive Date: 07/22/16 DOCKET NO. 11-30 693 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to an initial compensable rating for right ear hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Jones, Associate Counsel INTRODUCTION The Veteran had active military service from September 1979 to February 1980, from February 2003 to March 2003, and from December 2008 to June 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which, in pertinent part, granted service connection for right ear hearing loss and assigned a noncompensable rating, effective October 25, 2010. The Veteran testified before the undersigned at a Board hearing in June 2012. A transcript of the hearing has been reviewed and associated with the claims file. This matter was before the Board in June 2014 at which time it was remanded for further evidentiary development. FINDING OF FACT The Veteran's right ear hearing loss has been objectively shown to be manifested by no more than Level I hearing acuity. CONCLUSION OF LAW The criteria for an initial compensable rating for right ear hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R §§ 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). The claim on appeal stems from the initial grant of service connection. The courts have held that 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). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Service treatment records and post-service medical records have been associated with the claims file. Pursuant to the Board's June 2014 remand directives, outstanding VA treatment records have been obtained. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran was provided a VA examination in March 2011. As requested in the Board's remand directives, an additional VA examination was provided in September 2014. These VA examinations, in total, are adequate for the purposes of the instant matter adjudicated herein, as they were based on consideration of the Veteran's pertinent medical history and described the current severity of the Veteran's right ear hearing loss disability. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). At the VA examinations the Veteran was afforded an opportunity to report how the hearing loss affected his daily life and his reports were recorded. Thereafter, the RO issued a supplemental statement of the case in November 2014. The Board finds that there has been substantial compliance with the remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts. Legal Criteria Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. In the case of an initial rating, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, the Board must consider whether the disability has undergone varying and distinct levels of severity while the claim has been pending and provide staged ratings during those periods. Hart v. Mansfield, 21 Vet. App. 505 (2007). Hearing loss is rated under the criteria of 38 C.F.R. § 4.85, Code 6100. Evaluations of defective hearing are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345 (1993). Hearing impairment is determined by averaging the hearing impairment at each of the four designated frequencies (1000, 2000, 3000, and 4000 Hertz). 38 C.F.R. § 4.85. This results in a Puretone Threshold Average for each ear. Id. The Puretone Threshold Average is charted, in conjunction with the Speech Discrimination Percentage for that ear, in Table VI of 38 C.F.R. § 4.85. Id. This results in a score, expressed as a Roman numeral, for each ear. Id. The Roman numeral scores for both ears are then charted in Table VII of 38 C.F.R. § 4.85, and the intersection of the scores provides the percentage of disability. Id. If impaired hearing is service connected in only one ear, in order to determine the percentage evaluation from Table VII, the nonservice connected ear will be assigned a Roman numeral designation for hearing impairment of I. 38 C.F.R. § 4.85(f). An exceptional pattern of hearing impairment occurs either when the puretone threshold at each of the four specified frequencies is 55 decibels or more, 38 C.F.R. § 4.86(a), or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, 38 C.F.R. § 4.86(b). If either of these provisions applies, each ear is evaluated separately. See 38 C.F.R. § 4.86. The Roman numeral designation for the ear with an exceptional pattern of hearing impairment is derived from Table VI or VIa, whichever results in the higher numeral. When 38 C.F.R. § 4.86(b) is applicable, the assigned numeral is elevated to the next higher Roman numeral. Id. Table VIa will also be applied when an examiner certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. See 38 C.F.R. § 4.85(c). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. §§ 4.7, 4.21. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Factual Background and Analysis The Veteran underwent a VA examination in March 2011. He exhibited puretone thresholds, in decibels as follows: Hz 1000 2000 3000 4000 RIGHT 5 15 35 45 LEFT 0 15 20 35 Speech audiometry revealed speech recognition ability of 96 percent for the right ear. The average puretone threshold was 25. Applying the findings from the March 2011 examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level I hearing loss in the right ear. As the left ear is not service connected, a Roman numeral I is assigned for the left ear. See 38 C.F.R. § 4.85(f). When the assigned Roman numerals are applied to Table VII, results reveal a noncompensable rating for right ear hearing loss. 38 C.F.R. § 4.85. The Veteran was afforded an additional VA audiological examination in September 2014. He exhibited puretone thresholds, in decibels as follows: Hz 1000 2000 3000 4000 RIGHT 10 20 35 55 LEFT 10 25 25 40 Speech audiometry revealed speech recognition ability of 94 percent for the right ear. The average puretone threshold was 30. Applying the findings from the September 2014 examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level I hearing loss in the right ear. Again, the left ear is not service connected, thus a Roman numeral I is assigned. See 38 C.F.R. § 4.85(f). When the assigned Roman numerals are applied to Table VII, results reveal a noncompensable rating for right ear hearing loss. 38 C.F.R. § 4.85. The Board has reviewed the probative evidence of record and finds that the Veteran's right ear hearing disability has not been shown to be manifested by an exceptional pattern of hearing impairment; or to otherwise approximate the criteria for a compensable rating at any time during the appeal period. Fenderson, supra. The Board acknowledges the Veteran's assertions that his disability is entitled to a compensable evaluation. However, the examination records reflect no more than Level I auditory acuity for the right ear at any point after service connection was established. Such findings do not support assignment of a compensable evaluation. The Veteran's audiometric findings fall squarely within the criteria for a noncompensable evaluation under the provisions of 38 C.F.R. § 4.85, Diagnostic Code 6100. In sum, throughout the appeal period, the Veteran's level of disability has most nearly approximated that contemplated by his current evaluation. As the preponderance of the evidence is against the claims the benefit of the doubt rule is not applicable and the claim of entitlement to an initial compensable rating for right ear hearing loss is denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Extraschedular Consideration The Board has also considered whether this case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). However, this case does not present such an exceptional or unusual disability picture that it would be impracticable to apply the schedular standards, and referral is unnecessary. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Here, the manifestations of the Veteran's right ear hearing loss disability are fully considered by the rating criteria. As such, referral for consideration of an extra-schedular rating is not necessary at this time. The Board notes that under Johnson v. McDonald, 762 F.3d 1362 (2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for additional disability from a combined effect of multiple conditions. Total Disability Rating Based Upon Individual Unemployability (TDIU) Finally, the Board notes that entitlement to a TDIU is an element of all increased disability rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the record is negative for evidence that the Veteran is unemployable due to his right ear hearing loss disability. The Board acknowledges that during the September 2014 VA examination, the Veteran reported he retired from being an EMT because he couldn't hear with a stethoscope in his right ear during training. However, he stated that he was now employed full-time in a chemical operations plant. As the appellant is employed full-time, remand or referral of this claim for consideration of entitlement to a TDIU is not necessary. ORDER Entitlement to an initial compensable rating for right ear hearing loss is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs