Citation Nr: 1642354	
Decision Date: 11/03/16    Archive Date: 11/18/16

DOCKET NO.  12-28 691	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

Entitlement to a disability rating in excess of 10 percent for service-connected bilateral hearing loss.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

T. Theophilus Griffin, Counsel








INTRODUCTION

The Veteran had active service from July 1976 to July 1979. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 decision of the Los Angeles, California, Regional Office (RO).  


FINDINGS OF FACT

1.  On VA audiological examination, in September 2010, the Veteran's bilateral hearing loss was manifested by an average puretone threshold in decibels of 63.8, with speech recognition of 92 percent (Level II hearing loss) in the right ear, and an average puretone threshold in decibels of 105 (Level XI hearing loss-utilizing Table VI and Level VIa) in the left ear. 

2.  On VA audiological examination, in June 2012, the Veteran's bilateral hearing loss was manifested by an average puretone threshold in decibels of 57.5, with speech recognition of 96 percent (Level II hearing loss) in the right ear, and an average puretone threshold in decibels of 110, with speech recognition of zero (Level XI hearing loss-utilizing Table VI and Level VIa) in the left ear. 


CONCLUSION OF LAW

The criteria for a disability rating in excess of 10 percent for service-connected bilateral hearing loss are not met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.85, 4.86, Diagnostic Code 6100 (2015). 




REASONS AND BASES FOR FINDINGS AND CONCLUSION

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case).  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).   

VA provided the necessary notice to the Veteran in an August 2010 correspondence.   

VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1).  VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim.  38 C.F.R. § 3.159(c)(4). 

In this case, VA obtained relevant VA treatment records and provided the Veteran adequate VA examinations, in September 2010 and June 2012.  Neither the Veteran nor his representative have suggested that there are any additional relevant records VA should obtain on the Veteran's behalf, and any such records are not reasonably identified by the record.  

Service-connected disabilities are rated in accordance with VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (Schedule), which 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.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  When after considering carefully all procurable and assembled data a reasonable doubt arises regarding the degree of disability, the Board shall resolve such doubt in favor of the claimant.  38 C.F.R. § 4.3.  In all such claims, separate ratings for separate periods of time, as the evidence may show, is considered.  See Fenderson v. West, 12 Vet. App. 119 (1999).

The Veteran's service-connected bilateral hearing loss has been assigned a 10 percent disability evaluation, under 38 C.F.R. § 4.85, Diagnostic Code 6100.

Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second.  To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness.  38 C.F.R. § 4.85(h), Table VI.  In order to establish entitlement to a rating in excess of 10 percent for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and/or average pure tone decibel loss are met.  The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests.  These results are then charted on Table VI, Table VIA, in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule.  38 C.F.R. § 4.85.  An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86.

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




HERTZ



500
1000
2000
3000
4000
RIGHT
40
40
55
70
90
LEFT
105
105
105
105
105

The average puretone threshold was 63.8 decibels in the right ear and 105 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 92 percent in the right ear but, as noted in an October 2010 correspondence, a speech recognition percentage could not be obtained for the left ear because the Veteran was unable to tolerate the test.  The examiner noted that the Veteran had difficulty with communication and with hearing the television and telephone.

In June 2012, on the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
35
55
65
75
LEFT
110
110
110
110
110

The average puretone threshold was 57.5 decibels in the right ear and 110 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of zero in the left ear.  The Veteran's functional impairment was noted to include difficulty with understanding speech.

Merits

As it relates to the right ear, the record contains no certification of language difficulties, inconsistent speech audiometry scores, or evidence of an exceptional pattern of hearing impairment rendering the numeric designations contained in Table VIa inapplicable.  See 38 C.F.R. §§ 4.85(c), 4.86.  The audiometry test results of the September 2010 VA examination and June 2010 VA examination equate to Level II hearing in the right ear, respectively.  

However, as it relates to the left ear, the competent statement that the Veteran was unable to tolerate speech recognition testing, in September 2010, and the audiological findings of VA examinations render consideration of the numeric designations contained in both Tables VI and VIa appropriate.  See 38 C.F.R. §§ 4.85(c), 4.86(a).  While the audiological findings were not identical, utilizing either Tables VI or VIa reveals Level XI left ear hearing loss based on the audiological findings obtained on the respective examinations, in September 2010 and June 2010.  

Level II hearing in the right ear and Level XI hearing in the left ear, when applied to the Table VII percentages for hearing impairment, result in a 10 percent rating and no more.  Thus, a disability rating in excess of 10 percent is not warranted at this time.  

Extraschedular and other considerations

Additionally, the Board has considered whether the Veteran's respective disabilities warrant referral to the Chief Benefits Director of VA's Compensation and Pension Service under 38 C.F.R. § 3.321.  The Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology.  Id. at 115.  If the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation(s) is adequate, referral for extraschedular consideration is not required, and the analysis stops.  Id. 

The Board finds that the rating criteria and presently assigned disability evaluations contemplate the level of the Veteran's respective disabilities.  There is evidence that the Veteran's respective disabilities result in hearing impairment, tinnitus, and social and occupational functional impairments; however, the Board finds that based on the evidence of record, medical and law, the symptomatology associated with the Veteran's respective disabilities currently do not warrant referral for consideration of extraschedular rating is not warranted nor is the assignment of a total disability rating based on individual unemployability.  Id.; see also 38 C.F.R. § 4.16.  See also Martinak v. Nicholson, 21 Vet. App. 447 (2007).  

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 service-connected 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 a disability that can be attributed only to the combined effect of multiple conditions.

Finally, the Board acknowledges that a request for a total disability rating due to individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but can be part of a claim for increased compensation.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  Here, the Veteran has not alleged that his hearing loss prevents him from obtaining or maintaining substantially gainful employment. Thus, the Board finds that this matter is not raised by the record, and it is therefore unnecessary to remand the matter for further action. 




ORDER

A disability rating in excess of 10 percent for service-connected bilateral hearing loss is denied.  



____________________________________________
A. C. MACKENZIE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs