Citation Nr: 1751725	
Decision Date: 11/13/17    Archive Date: 11/22/17

DOCKET NO.  14-07 034A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUE

Entitlement to an initial compensable evaluation for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his Wife


ATTORNEY FOR THE BOARD

JR Cummings, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1970 to March 1974.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts.  In that decision, the RO granted service connection for bilateral hearing loss and assigned an initial noncompensable disability rating.  The Veteran timely appealed the initial rating assigned.

In June 2015, the Veteran testified at a videoconference hearing before a Veterans Law Judge.  A transcript of this proceeding is of record.

The Board remanded the Veteran's claim in September 2015. 

In May 2016, the Board informed the Veteran that the VLJ who conducted the hearing was unable to participate in the decision in the case and that he had the option of attending another hearing.  In June 2016, the Veteran declined to appear at another hearing and requested that the Board consider his case on the evidence of record.  The Board will therefore do so.


FINDING OF FACT

The Veteran has had Level I hearing loss in each ear throughout the pendency of the claim.


CONCLUSION OF LAW

The criteria for an initial  compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code (DC) 6100 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. 

As noted above, the claim for a higher initial rating for bilateral hearing loss arises from the Veteran's disagreement with rating assigned in connection with the grant of service connection for this disability.  Where, as here, an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice.  Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007).

Next, VA has a duty to assist the Veteran in the development of the claims.  This duty includes assisting him in the procurement of service treatment records, pertinent treatment records, and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The claims file contains the Veteran's service treatment records, as well as post-service VA treatment records and adequate VA examination reports.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).  Moreover, his statements in support of the claims are of record.  Consequently, there is no indication of any additional action required pursuant to VA's duty to assist. 

For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the appellant in the development of the claim.

II.  Claim for a Higher Initial Rating for Bilateral Hearing Loss

The Veteran currently receives a noncompensable rating for his bilateral hearing loss under 38 C.F.R. § 4.85, DC 6100. 

The assigned rating for hearing loss is determined by mechanically applying the rating criteria to audiometric test results.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Under DC 6100, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examination.  Evaluations of hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz (cycles per second).  To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness.  38 C.F.R. § 4.85, DC 6100.  As set forth in the regulations, Tables VI, VI A, and VII are used to calculate the rating to be assigned.  See 38 C.F.R. § 4.85, DC 6100.  Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII.  See 38 C.F.R. § 4.85. 

Alternatively, VA regulations provide that in cases of exceptional hearing loss, when the pure tone thresholds 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 will be evaluated separately.  38 C.F.R. § 4.86 (a).  The provisions of 38 C.F.R. § 4.86 (b) further provide that, when the pure tone 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 would result in the higher numeral.  As shown below, there were no exceptional hearing patterns in this case.

A September 2012 VA audiological evaluation indicates that the Veteran's pure tone thresholds, in decibels, and speech discrimination scores were as follows:




HERTZ
CNC

1000
2000
3000
4000
Avg
%
RIGHT
15
10
25
55
26
92
LEFT
15
25
50
65
39
94

Using Table VI, the September 2012 VA examination revealed level I hearing in the right ear and level I hearing in the left ear.  Combining level I hearing for the right ear and level I hearing for the left ear according to Table VII yields a noncompensable rating.  

A December 2015 audiological evaluation for complaints for decreased hearing indicates that the Veteran's pure tone thresholds, in decibels, and speech discrimination scores were as follows:


HERTZ
CNC

1000
2000
3000
4000
Avg
%
RIGHT
10
5
35
55
26.25
94
LEFT
15
20
50
50
33.75
94

Using Table VI, the December 2015 VA examination revealed level I hearing in the right ear and level I hearing in the left ear.  Combining level I hearing for the right ear and level I hearing for the left ear according to Table VII yields a noncompensable rating.  

The Veteran contends that he should be rated at a higher evaluation because his hearing has gotten worse since his last examination, it is affecting him socially and occupationally and his wife stated during the hearing that they had to repeat things to him.  However, as noted above, the assigned evaluation for hearing loss is determined by mechanically applying the rating criteria to certified results.  See Lendenmann v. Principi, 3 Vet. App. at 349.  Those results reflect that a noncompensable rating is warranted throughout the pendency of the claim.

As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry.  See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  The first question is whether the schedular rating criteria adequately contemplate disability picture.  Thun, 22 Vet. App. at 115.  If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  If the schedular evaluation does not contemplate the level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms, i.e., marked interference with employment and frequent hospitalization.  If the disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted.  As noted, the Veteran and his wife have indicated that the Veteran's hearing difficulties affect him socially and occupationally and that family members have to repeat things to him.  These difficulties are, however, manifestations of difficulty hearing or understanding speech, which are contemplated by the schedular rating criteria for hearing loss.  Doucette v. Shulkin, 28 Vet. App. 366 (2017).

Finally, in Martinak v. Nicholson, 21 Vet. App. 447 (2007) the Court addressed a challenge to VA's audiological testing practices, specifically, whether VA's policy of conducting all audiometry testing of hearing-loss claimants in a sound-controlled room was valid. The Court also addressed the requirements for an adequate VA audiological examination report. The Court upheld VA's policy of conducting audiometry testing in a sound controlled room. The Court also held that, in addition to dictating audiometric test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  The September 2012 VA examiner indicated that the Veteran stated his wife says she is talking and he doesn't hear her, causing her to think he is ignoring her.  The December 2015 VA examiner indicated that the Veteran is retired, he has trouble hearing his wife and children, and increases the television volume to a degree that makes it too loud for others in the room.  This complied with Martinak.

For the foregoing reasons, the preponderance of the evidence is against the claim for an initial compensable rating for bilateral hearing loss.  The benefit of the doubt doctrine is therefore not for application.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3.


ORDER

Entitlement to an initial compensable rating for bilateral hearing loss is denied.



____________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs