Citation Nr: 1745560	
Decision Date: 10/12/17    Archive Date: 10/19/17

DOCKET NO.  13-24 976	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in 
Muskogee, Oklahoma


THE ISSUE

Entitlement to a compensable initial rating for service-connected hearing loss.


REPRESENTATION

Veteran represented by:	Oklahoma Department of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

The Veteran and A.W.


ATTORNEY FOR THE BOARD

Saudiee Brown, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1970 to January 1972 and from October 1972 to November 1975.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.  The Board previously remanded this matter in September 2016.

The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in May 2016.  The Board notes that a representative, A.W., was present as a witness at the hearing.  A transcript of the hearing is of record.

The Board notes that entitlement to service connection for a lumbar strain (claimed as residuals of acute muscle strain in back with back condition) was granted by the RO in a July 2017 rating decision with a 10 percent disability rating effective May 23, 2013.  Thus, this appeal is considered granted in full and will no longer be considered by the Board.


FINDING OF FACT

The Veteran's bilateral hearing loss has been manifested by no worse than auditory acuity level I in the left and right ear.


CONCLUSION OF LAW

The criteria for a compensable initial rating for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.85, 4.86 Diagnostic Code 6100 (2016).



REASONS AND BASES FOR FINDING AND CONCLUSION

I.	Duty to Notify and Assist

VA has duties to notify and assist claimants 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) (2016).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Compliant notice was provided to the Veteran in October 2010 and January 2013.

Here, the Veteran's increased rating claim arises from his disagreement with the initial evaluation that was assigned following the grant of service connection.  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) ((section 5103(a) notice is no longer required after service-connection is awarded).

VA has a duty to assist the Veteran in the development of the claim.  The claims file includes service treatment records (STRs), VA medical records, and the statements of the Veteran in support of his claim.  The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain.

The Board also notes that actions requested in the prior remand have been undertaken.  Indeed, VA examinations and supplemental VA examiner opinions were provided.  Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary.  See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall, 11 Vet. App. 268 (1998)).  

VA examinations were obtained in September 2011, February 2013 and June 2017.  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 Veteran has been afforded adequate VA examinations and opinions.  The reports include a clinical examination, diagnostic testing, and the Veteran's reported symptoms.  The reports provide findings and adequate rationale relevant to the criteria for service connection. 

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim.  Essentially, all available evidence that could substantiate this claim has been obtained.

II.	Increased Rating

Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity.  Separate diagnostic codes identify the various disabilities.  38 C.F.R. Part 4.  When rating a service-connected disability, the entire history must be borne in mind.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran contends that he suffers from hearing loss that his hearing has worsened over time and that it is hard to hear the television.

The Veteran's service-connected bilateral hearing loss is rated as 0 percent disabling under 38 C.F.R. §§ 4.85, 4.86, 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 compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and 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, or 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.

Analysis

Turning to the evidence of record, on a September 2011 VA examination, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
20
15
40
40
LEFT
20
20
25
25
50

The puretone threshold average was 28.8 in the right ear and 30 in the left ear.  Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 96 percent in the left ear.  The Veteran reported difficulty hearing during normal conversation in the presence of background noise.  Under 38 C.F.R. § 4.85, Table VI, these scores meet Roman Numeral I, bilaterally.

On a January 2012 VA audiogram, puretone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
10
20
15
40
40
LEFT
20
20
25
25
50

The puretone threshold average was 28.8 in the right ear and 30 in the left ear.  Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 96 percent in the left ear.  Under 38 C.F.R. § 4.85, Table VI, these scores meet Roman Numeral I, bilaterally.

On a February 2013 VA examination, puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
20
40
35
LEFT
15
15
25
50
50

The puretone threshold average was 27.5 in the right ear and 35 in the left ear.  Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 100 percent in the left ear.  The Veteran stated it was hard to hear the television and had to turn up the volume.  Under 38 C.F.R. § 4.85, Table VI, these scores meet Roman Numeral I, bilaterally.

On a June 2017 VA examination, puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
25
45
40
LEFT
15
20
30
45
45

The puretone threshold average was 33 in the right ear and 35 in the left ear.  Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 94 percent in the left ear.  Under 38 C.F.R. § 4.85, Table VI, these scores meet Roman Numeral I, bilaterally.

In this case, the Board finds that the requirements for a higher rating are not met based on the demonstrated levels of hearing impairment, emphasizing that 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.  Thus, a compensable rating for bilateral hearing loss must be denied.

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).


Total Rating for Compensation Based on Individual Unemployability

A claim for total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Entitlement to TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability.  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  However, TDIU is not raised in an increased rating claim unless the Roberson requirements are met.  Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009).  In this case, the Veteran has not stated, and the evidence does not suggest, that the Veteran is unemployable due to his service-connected hearing loss. 


ORDER

Entitlement to a compensable initial rating for service-connected hearing loss is denied.



____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs