Citation Nr: 1638004	
Decision Date: 09/28/16    Archive Date: 10/07/16

DOCKET NO.  12-23 583	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


THE ISSUE

Entitlement to an initial compensable rating for bilateral hearing loss.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Christine C. Kung, Counsel


INTRODUCTION

The Veteran served on active duty from November 1975 to June 1982 and from May 1986 to December 1988.

This matter comes on appeal before the Board of Veterans' Appeals (Board) from February 2010 and August 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Des Moines, Iowa (RO).  


FINDING OF FACT

For the entire rating period, the Veteran had, at worst, level I hearing in the right ear and level II hearing in the left ear.


CONCLUSION OF LAW

The criteria for an initial compensable rating, in excess of 0 percent, for bilateral hearing loss have not been met.  38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. §§ 4.3, 4.7, 4.85, 4.86 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2016). The RO issued June 2007 and March 2010 preadjudicatory notice letters to the Veteran which met the VCAA notice requirements with respect to bilateral hearing loss.  Moreover, because the appeal for an increased rating stems from the initial grant of service connection for bilateral hearing loss, additional notice was not required in this case.  See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims); 38 C.F.R. § 3.159(b)(3)(i). 

VA treatment records, Social Security Administration (SSA) medical records, and the Veteran's statements have been associated with the record.  The Veteran was afforded VA examinations in September 2007, May 2009, November 2009, March 2010, and March 2014 to address the rating for bilateral hearing loss.  See 38 C.F.R. § 3.159(c)(4) (2016).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA examinations obtained are adequate for rating purpose as they included complete audiological examinations of the Veteran and addressed all the relevant rating criteria.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination has been met.  38 C.F.R. § 3.159(c)(4).  The Veteran and representative have not identified any outstanding evidence that needs to be obtained.  For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. 

Disability Rating Laws and Analysis 

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities.  The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2016).  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3. 

The Veteran has challenged the initial disability rating assigned for service-connected hearing loss by seeking appellate review.  Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (noting distinction between claims stemming from an original rating versus increased rating).  Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" rating.  Id.  The Board finds that the weight of the evidence does not establish that symptoms related to hearing loss have changed in severity over the course the appeal to warrant a staged rating.

The Rating Schedule provides rating tables for the evaluation of hearing impairment. Table VI assigns a Roman numeral designation (I through XI) for hearing impairment based on a combination of percent speech discrimination and the puretone threshold average (the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four).  Table VII is used to determine the percentage evaluation by combining the Table VI Roman numeral designations for hearing impairment in each ear.  38 C.F.R. § 4.85.  When evaluating service-connected hearing impairment, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned in audiometric evaluations.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

38 C.F.R. § 4.86 provides for exceptional patterns of hearing impairment.  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 evaluated separately.  
38 C.F.R. § 4.86(a).  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 from either Table VI or Table VIA, whichever results in the higher numeral.  That numeral is then elevated to the next higher Roman numeral.  Each ear is evaluated separately.  38 C.F.R. § 4.86(b).  

The Veteran is service-connected for bilateral hearing loss, rated as 0 percent disabling.  The Veteran contends in an October 2010 statement that a higher initial rating is warranted for bilateral hearing loss due to his need for hearing aids.  He contends in March 2010 statements that 55 percent of his hearing is gone in the left ear, and 45 percent is gone in the right ear.  He also contends in an August 2012 substantive appeal that he was put on profile for hearing loss in service and he has ringing present in his ears.  With regard to his August 2012 contentions, the Board notes that service-connection has already been established for bilateral hearing loss and tinnitus, and the assigned rating for tinnitus is not on appeal.  Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  

After a review of all the evidence, lay and medical, the Board finds that, for the entire rating period, an initial compensable evaluation is not warranted for bilateral hearing loss.  For the entire rating period, the Veteran had, at worst, level I hearing in the right ear and level II hearing in the left ear.

On the VA audiological evaluation in September 2007, puretone thresholds, in decibels, were as follows:




HERTZ


1000
2000
3000
4000
RIGHT
35
55
55
50
LEFT
40
60
65
60

Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 88 percent in the left ear.  

On the VA audiological evaluation in May 2009, puretone thresholds, in decibels, were as follows:




HERTZ


1000
2000
3000
4000
RIGHT
35
50
50
50
LEFT
35
65
60
55

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 92 percent in the left ear.  


On the VA audiological evaluation in November 2009, puretone thresholds, in decibels, were as follows:




HERTZ


1000
2000
3000
4000
RIGHT
30
50
50
45
LEFT
35
65
65
60

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear.  During the examination, the Veteran reported the use of hearing aids and difficulty with understanding speech.  

On the VA audiological evaluation in March 2010, puretone thresholds, in decibels, were as follows:




HERTZ


1000
2000
3000
4000
RIGHT
40
50
50
50
LEFT
40
65
60
55

Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 95 percent in the left ear.  Functional effects of hearing loss included difficulty hearing in all situations, and increased difficulty with hearing in the evening. 

On the VA audiological evaluation in March 2014, puretone thresholds, in decibels, were as follows:




HERTZ


1000
2000
3000
4000
RIGHT
40
50
60
55
LEFT
40
65
65
60

Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 96 percent in the left ear.  The VA examiner opined that hearing loss did not impact ordinary conditions of daily life, including the ability to work.  

SSA medical records indicate that a May 2009 audiological evaluation was conducted.  While "three tone" averages for hearing loss and speech discrimination scores were reported, the audiometric findings were not reported in detail and it is not clear whether speech discrimination was assessed using the Maryland CNC.  Because 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, the May 2009 audiometric findings have not been considered in evaluating the Veteran's disability.  38 C.F.R. § 4.85 (a) (2016).

The September 2007 audiometric findings, applied to Table VI, yield a numeric designation of I for the right ear (49 decibel puretone threshold average, and 100 percent speech discrimination), and a numeric designation of II for the left ear (56 decibel puretone threshold average, and 88 percent speech discrimination).  The numeric designations for the right ear (I) along with the numeric designation for the left ear (II), entered into Table VII, produce a 0 percent evaluation for hearing impairment.

The May 2009 audiometric findings, applied to Table VI, yield a numeric designation of I for the right ear (46 decibel puretone threshold average, and 94 percent speech discrimination), and a numeric designation of I for the left ear (54 decibel puretone threshold average, and 92 percent speech discrimination).  The numeric designations for the right ear (I) along with the numeric designation for the left ear (I), entered into Table VII, produce a 0 percent evaluation for hearing impairment.

The November 2009 audiometric findings, applied to Table VI, yield a numeric designation of I for the right ear (44 decibel puretone threshold average, and 96 percent speech discrimination), and a numeric designation of I for the left ear (56 decibel puretone threshold average, and 96 percent speech discrimination).  The numeric designations for the right ear (I) along with the numeric designation for the left ear (I), entered into Table VII, produce a 0 percent evaluation for hearing impairment.

The March 2010 audiometric findings, applied to Table VI, yield a numeric designation of I for the right ear (48 decibel puretone threshold average, and 100 percent speech discrimination), and a numeric designation of I for the left ear (55 decibel puretone threshold average, and 95 percent speech discrimination).  The numeric designations for the right ear (I) along with the numeric designation for the left ear (I), entered into Table VII, produce a 0 percent evaluation for hearing impairment.

The March 2014 audiometric findings, applied to Table VI, yield a numeric designation of I for the right ear (51 decibel puretone threshold average, and 100 percent speech discrimination), and a numeric designation of II for the left ear (58 decibel puretone threshold average, and 96 percent speech discrimination).  The numeric designations for the right ear (I) along with the numeric designation for the left ear (II), entered into Table VII, produce a 0 percent evaluation for hearing impairment.

The Board finds that puretone thresholds reported on VA audiological evaluations were not 55 decibels or more at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) and were not recorded at 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz in either ear.  Thus, the provision of 38 C.F.R. § 4.86 for exceptional patterns of hearing impairment do not apply in this case.  

While the Veteran contends in March 2010 statements that he was told by a VA examiner that he had 55 percent of his hearing is gone in the left ear, and 45 percent is gone in the right ear, it appears that the Veteran was reporting findings related to his puretone threshold averages on the prior November 2009 VA examination.  Puretone threshold averages, however, do not correlate directly to a percentage of hearing loss or a percent disability rating for hearing loss, and are instead, used in calculating a percent evaluation for hearing impairment by combining such findings with speech discrimination scores, as described above.    

Based on all the evidence of record, lay and medical, the Board finds that a compensable evaluation is not warranted for bilateral hearing loss at any point during the initial rating period.  The Board finds that audiometric testing results from the September 2007, May 2009, November 2009, March 2010, and March 2014 VA examinations are probative, consistent, and included adequate testing under the rating criteria.  See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  The record does not otherwise contain valid audiometric testing that may be used in evaluating the Veteran's disability.

While a March 2014 VA examiner indicated that the Veteran's hearing loss did not impact ordinary conditions of daily life, the Board recognizes that the Veteran identified difficulty with hearing and understanding conversation due to service-connected hearing loss.  The Veteran is competent to describe the effects of hearing loss, and the Board finds that his statements are credible; however, the description of the effects of service-connected hearing loss must be considered in conjunction with the clinical evidence of record as well as the pertinent rating criteria, and speech discrimination is specifically contemplated by the rating criteria.  The Board emphasizes that disability ratings are derived by a mechanical application of the rating schedule.  Lendenmann, 3 Vet. App. at 349.  

For these reasons, the Board finds that a preponderance of the evidence is against the appeal for an initial compensable rating for bilateral hearing loss and the appeal must be denied.  Because the preponderance of the evidence is against the appeal, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 
38 C.F.R. §§ 4.3, 4.7.

Extraschedular Consideration

The Board has considered whether referral for an extraschedular evaluation is warranted.  In exceptional cases an extraschedular rating may be provided.  
38 C.F.R. § 3.321 (2016).  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.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008).

Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant'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").  When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Director of the Compensation Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating.  Id. 

Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by bilateral hearing loss is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required.  The schedular rating criteria specifically provides for disability ratings based on audiometric evaluations, to include speech discrimination testing, which recognizes and measures the inability to hear words in conversation.  The speech recognition score is one measure of the Veteran's complaints of difficulty with hearing, to include difficulty with hearing or understanding speech.  In this case, the hearing loss symptoms and associated difficulty with speech discrimination are contemplated by the schedular rating criteria.

The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations.  
38 U.S.C.A. § 1155 (2016).  "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability."  38 C.F.R. § 4.1 (2016).  While there is lay evidence of functional limitations related to the Veteran's difficulties with hearing, the functional limitations imposed by the Veteran's disability are specifically contemplated by the criteria discussed above, including the effect of hearing loss on occupation and daily life.  

According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations."  Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities.  

In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate.  In this case, there is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria.  In the absence of exceptional factors associated with the hearing loss disability, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. 
§ 3.321(b)(1) are not met.  See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).


ORDER

An initial disability rating in excess of 0 percent for service-connected bilateral hearing loss is denied.  




____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs