Citation Nr: 1633314	
Decision Date: 08/23/16    Archive Date: 08/31/16

DOCKET NO.  12-34 545	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to a rating higher than 20 percent for bilateral hearing loss. 


REPRESENTATION

Appellant represented by:	Arizona Department of Veterans Services


ATTORNEY FOR THE BOARD

Stephen LoGerfo, Associate Counsel.


INTRODUCTION

The Veteran served in the Marine Corps from May 1943 to November 1945, from December 1950 to December 1953 and from May 1956 to June 1959.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. 

A video hearing was scheduled in this matter, but was canceled by the Veteran in July 2016.  

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

At its worst, the Veteran has Level VIII hearing loss in the right ear and Level IV hearing in the left ear.  


CONCLUSION OF LAW

The criteria for rating in excess of 20 percent for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.385, 4.1-4.14, 4.85, 4.86 Diagnostic Code (DC) 6100 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.  

The Veteran filed an increased rating claim in April 2010. 

The Veteran contends that his service-connected bilateral hearing loss warrants an increased rating.

On the authorized audiological evaluation in November 2010, pure tone thresholds, in decibels, were as follows:
 




HERTZ



500
1000
2000
3000
4000
RIGHT
70
70
65
70
75
LEFT
25
40
60
75
75

Speech audiometry revealed speech recognition ability of 50 percent in the right ear and of 94 percent in the left ear.

The Veteran's bilateral hearing loss is currently evaluated under the provisions of 38 C.F.R. § 4.87, DC 6100.  The Ratings Schedule, under DC 6100, provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I though XI) for hearing impairment, established by a state licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  See 38 C.F.R. § 4.85 (2015). 

Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing.  Id.  

38 C.F.R. § 4.86(a) (2015), provides that when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 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 is to be evaluated separately.  Id.  The provisions of 38 C.F.R. § 4.86(b) provide that when the 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 is the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  Id. 

The Court has noted that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the numeric designations assigned after audiological evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  

Based upon the results of the November 2010 audiological examination, from Table VI of 38 C.F.R. § 4.85, a Roman numeral VIII is derived for the right ear and a Roman numeral II is derived for the left ear.  Thus, neither is the "better ear."  A 10 percent is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row III with column VIII. 

However, the left ear shows an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86(b).  Applying Table VIa to the puretone threshold averages from the November 2010 examination, a Roman numeral IV is established for the left ear and because the right ear also showed an exceptional pattern of hearing impairment, a Roman numeral VI could be  assigned from Table VI but the right ear already is entitled to a higher number of VIII.  Under 38 C.F.R. § 4.85, Table VII, these findings warrant the current 20 percent disability rating, and a higher disability rating is not warranted.

There are no relevant treatment records during the appeal period that show an audiogram or hearing loss disability that would differ with the findings from the VA examination. 

When there is an exceptional disability picture, such that the rating schedule criteria do not reasonably describe a claimant's disability level and symptomatology, an RO may refer a case to the VA Under Secretary for Benefits or to the Director of the VA Compensation and Pension Service for consideration of an extraschedular rating. See 38 C.F.R. § 3.321(b) (1) (2013); see also Thun v. Peake, 22 Vet. App. 111, 115 (2008). Extraschedular ratings are limited to cases in which it is impractical to apply the regular standards of the rating schedule because there is an exceptional or unusual disability picture, with such related factors as frequent hospitalizations or marked interference with employment. 38 C.F.R. § 3.321(b) (1).

Here, the Veteran's symptoms of hearing loss do not suggest an exceptional or unusual disability picture.  He has not been hospitalized due to hearing loss and has not indicated that hearing loss markedly interferes with his capacity for employment. Therefore, there is no basis to refer the rating of his hearing loss for consideration of an extraschedular rating. 38 C.F.R. § 3.321.

Duties to Notify and Assist

When VA received a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  Here, the Veteran was provided with the relevant notice and information in an October 2010 letter. 

VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records, VA records, and identified private treatment records have been obtained and associated with the claims file. The Veteran was also provided with a VA examination which, contained a description of the history of the disability at issue; documented and considered the relevant medical facts and principles; and recorded the relevant findings for his bilateral hearing loss.  Additionally, an examination was scheduled for February 2016 and the Veteran did not attend the examination. The Veteran nor his representative submitted a statement of good cause for missing the examination. 






ORDER


An increased rating in excess of 20 percent for bilateral hearing loss is denied.  



____________________________________________
M. Tenner
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs