Citation Nr: 1802101	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  14-11 246	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to a higher initial disability rating than 30 percent for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

A. B., Counsel

INTRODUCTION

The Veteran served on active duty from November 1994 to October 1996.    

This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 

The Veteran provided testimony during a videoconference hearing before the undersigned in October 2017.  A transcript has been added to the claims file.  

The Board notes that the Veteran underwent a new audiological evaluation in June 2017, and after this appeal was certified to the Board.  However, in October 2017, he submitted a waiver of local jurisdiction in regard this evidence.  The Board has accepted this additional evidence for inclusion into the record on appeal.  See 38 C.F.R. § 20.800 (2017).


FINDING OF FACT

At worst, the Veteran has level VI hearing in both ears.  


CONCLUSION OF LAW

The criteria for an initial disability rating in excess of 30 percent for bilateral hearing loss are not met.  38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 4.85 (Tables VI, VIA and VII, Diagnostic Code 6100), 4.86 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

VA Duty to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2012); 
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board.  Indeed, the Veteran received VCAA notice in September 2010, prior to the initial adjudication of the issue on appeal.  Therefore, additional notice is not required, and any defect in notice is not prejudicial.  See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

The RO has obtained the Veteran's service treatment records and all identified VA and private treatment records.  The Veteran has not identified any outstanding and available medical treatment records.  

In addition, the Board finds that the VA medical opinion evidence is adequate as it is predicated on an accurate reading of the service treatment records as well as the medical records contained in the Veteran's claims file.  The examiner considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale for the opinions stated, relying on and citing to the records reviewed.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met.  38 C.F.R. § 3.159(c)(4).  

Therefore, VA has also fulfilled its duty to assist a veteran in the development of the claim.  See 38 U.S.C. § 5103A (West 2012); 38 C.F.R. § 3.159 (2017).  

Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Increased Rating: Bilateral Hearing Loss

The Veteran contends that his hearing loss is more severe than currently rated.  Unfortunately, the Board finds that the weight of the evidence is against the award of a disability rating in excess of 30 percent for bilateral hearing loss.  

Evaluations of hearing loss range from noncompensable to 100 percent, based upon 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 cycles per second.  38 C.F.R. § 4.85(a), (d) (2017).  

To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness.  38 C.F.R. § 4.85, Diagnostic Code 6100 (2017).  

When the pure tone thresholds at the four specified frequencies (1000, 2000, 3000, and 4000 hertz) are 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.  38 C.F.R. § 4.86 (a) (2017).  When the pure tone thresholds are 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 in the higher numeral.  That numeral will then be elevated to the next highest Roman numeral.  38 C.F.R. § 4.86 (b) (2017).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The claim for service connection for bilateral hearing loss was filed in September 2010.  While there are multiple audiogram reports dated prior to the claim, the most severe hearing loss was demonstrated during audiograms created after the claim for hearing loss was received by VA.  As such, the analysis below will focus on those records.  

The first audiogram evidence during the claim is a VA audiologic evaluation in March 2011, where pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
55
65
75
75
68
LEFT
60
65
80
75
70

Speech audiometry revealed speech recognition ability of 72 percent in the right ear and 76 percent in the left ear.  While masked bone conduction results were also provided, it is unclear to which ear the results pertain.  Nevertheless, the average of those results is 68, which is the same as or better than the air conduction results.  

The next audiogram evidence is a private audiologic evaluation in July 2011, where pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
55
65
70
65
64
LEFT
55
65
80
75
69

Speech audiometry revealed speech recognition ability of 72 percent in the right ear and 83 percent in the left ear.

Finally, during a VA audiologic evaluation in June 2017, pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
60
70
75
70
69
LEFT
50
80
80
75
71

Speech audiometry revealed speech recognition ability of 68 percent in the right ear and 71 percent in the left ear.  While masked bone conduction results were also provided, it is unclear to which ear the results pertain.  Nevertheless, the average of those results is 70, lower than that of the left ear, and would not change the outcome of this case if applied to right ear.  

Regarding the functional impact of the Veteran's bilateral hearing loss, the Veteran has consistently reported, including during VA audiologic evaluation and Board hearing, that his hearing loss causes him difficulty with hearing conversation, particularly within the presence of multiple speakers.  The Veteran stated that he has learned to read lips to help understand such conversation.  

VA treatment records do not include additional audiogram evidence.  

With respect to the right ear, the greatest pure tone threshold average was 68 decibels with a speech recognition score of 68 percent, demonstrated during the June 2017 examination.  This translates to Level VI hearing impairment for the right ear under Table VI.     

With respect to the left ear, the greatest pure tone threshold average was 72 decibels with a speech recognition score of 72 percent, also demonstrated during the June 2017 examination.  This translates to Level VI hearing impairment under Table VI for the left ear.  

Level VI hearing impairment in one ear and level VI hearing impairment in the other ear warrants a 30 percent rating under the applicable criteria.  38 C.F.R. § 4.85, Diagnostic Code 6100 (2017).  Accordingly, an increased schedular rating is not warranted.

In considering the appropriate disability ratings, the Board has also considered the Veteran's statements that his bilateral hearing loss disabilities are worse than the rating he currently receives.  The Board has also considered the Veteran's reports that his audiologist has stated that his hearing comprehension when communicating with others is only 20 percent.  However, this statement has not been demonstrated during any of the audiologic evaluations by the Veteran's VA or private audiologists.  Moreover, such a finding is significantly out of line with the fairly consistent findings of the 2011 and 2017 audiograms.  At no time has the Veteran demonstrated such impaired hearing comprehension upon audiologic testing, as required for a higher disability rating.  

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

Competency of evidence differs from weight and credibility.  While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his disabilities according to the appropriate diagnostic codes.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  

On the other hand, such competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations.  The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated.

The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted.  Bagwell v. Brown, 
9 Vet. App. 337, 339 (1996).  Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology.  If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization.  If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration.  See Thun v. Peake, 22 Vet. App. 111 (2008).  

In this case, the evidence does not indicate that Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above.  Specifically, the Board has reviewed all of his relevant symptoms related to the issue on appeal, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes.  See Mittleider v. West, 11 Vet. App. 181 (1998).  When asked about the functional impact of his hearing loss during the VA examinations mentioned above, the Veteran reported difficulty hearing and understanding speech in conversation.  This manifestation of loss of acuity is specifically contemplated in the rating criteria.  

Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted.  See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

Accordingly, the Board concludes that the preponderance of the evidence is against the claim for an initial disability rating in excess of 30 percent for bilateral hearing loss, and it is, therefore, denied.  In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C.A. § 5107(b).  However, as there is not an approximate balance of evidence, that rule is not helpful to the Veteran.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).


ORDER

An initial disability rating in excess of 30 percent for bilateral hearing loss is denied.  



____________________________________________
B. T. KNOPE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs