Citation Nr: 1815671 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 14-23 280 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD R. E. Jones, Counsel INTRODUCTION The Veteran served on active duty from October 1962 to September 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office in Los Angeles, California. The Veteran was scheduled for a Board videoconference hearing in April 2017. The Veteran called on the day of the hearing to cancel. There are no outstanding hearing requests and the Veteran's claim is ready for Board review. FINDING OF FACT A VA audiology report shows that the Veteran has Level I hearing loss in the right ear and Level II hearing loss in the left ear. CONCLUSION OF LAW The criteria for an initial compensable evaluation for bilateral hearing loss are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs 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 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran's appeal arises from the Veteran's disagreement with the initial rating evaluation assigned following the grant of service connection. In such case, the VCAA requires that the Secretary need only provide the Veteran with a generic notice after the initial claim for benefits has been filed and before the initial decision. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). No additional notice is required in the adjudication process because the other forms of notice-such as notice contained in the rating decisions and statement of the case (SOC) have already provided the claimant with the notice of law applicable to the specific claim on appeal. Wilson v. Mansfied, 506 F.3d 1055 (Fed. Cir. 2007). The Veteran's VA treatment records have been obtained and he has been provided a VA audiological examination. The Veteran has been accorded ample opportunity to present evidence and argument in support of the appeal. The Veteran has not indicated that there is any additional obtainable evidence that should be obtained to substantiate the claim. In sum, the Board is satisfied that the originating agency properly processed the Veteran's claim after providing the required notice and that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, the Board will address the merits of the claim. The August 2013 rating decision on appeal granted the Veteran service connection for bilateral hearing loss. The Veteran was assigned a noncompensable rating effective from January 30, 2012. On his September 2013 notice of disagreement (NOD), the Veteran said that he has trouble hearing women with high pitched voices. He said that he doubted that the VA hearing test took into account how a phone changes the pitch of voices. On his April 2014 substantive appeal he reported that he had problems hearing speech and the fainter sounds in everyday life, such as vehicle turn signals and the beep of a circuit tester. In a February 2018 informal hearing presentation, the Veteran's representative asserted that the Veteran is seeking an extraschedular rating for his bilateral hearing loss. A July 2013 VA audiometric evaluation (located in the Veteran's Virtual VA electronic file) revealed right ear puretone thresholds, in decibels, of 15, 25, 60, and 60 at 1000, 2000, 3000, and 4000 Hertz, respectively, with a puretone threshold four frequency average of 40 decibels. Audiometric evaluation of the left ear revealed puretone thresholds of 30, 60, 80, and 80 decibels at 500, 1000, 2000, 3000, and 4000 Hertz, respectively, with a puretone threshold four frequency average of 62 decibels. Speech recognition ability was 100 percent in both ears. The Veteran reported that the functional impact on his daily life included trouble hearing his wife and trouble hearing when there was background noise. Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. 38 C.F.R. § 4.85. The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted by a controlled speech discrimination test together with the results of a puretone audiometry test. The vertical lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent. See 38 C.F.R. § 4.85. The regulations have two provisions for evaluating veterans with certain patterns of hearing impairment that cannot always be accurately assessed under § 4.85 because the speech discrimination test may not reflect the severity of communicative functioning that these veterans experience. 38 C.F.R. § 4.86(a) indicates that if puretone thresholds in each of the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more, an evaluation can be based either on Table VI or Table VIa, whichever results in a higher evaluation. 38 C.F.R. § 4.86(b) indicates that when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa, whichever results in the higher numeral, and that numeral will then be elevated to the next higher Roman numeral. In this case, the Veteran's hearing loss does not meet these criteria and the Veteran's disability cannot be evaluated under the alternative rating scheme. With an initial rating assigned following a grant of service connection, as here, separate ratings may be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). The July 2013 VA audiological examination reveals that the Veteran had a puretone threshold average of 40 decibels in the right ear and 63 decibels in the left ear. He had speech discrimination of 100 percent in both ears. Using Table VI, these findings are equivalent to Level I hearing loss in right ear and Level II hearing loss in the left ear. Considering Table VII, when there is Level I hearing loss in one ear and Level II hearing loss in the other ear, a noncompensable rating is the maximum rating for assignment under the schedular criteria. 38 C.F.R. § 4.87(a), Code 6100. Accordingly the Veteran is not entitled to a compensable rating for his bilateral hearing loss disability. Under 38 C.F.R § 3.321(b)(1), in exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be made. In Doucette v. Shulkin, 28 Vet. App. 366 (2017), the United States Court of Appeals for Veterans Claims (Court) held that "the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech" and that "the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment." The symptomatology associated with the Veteran's bilateral hearing loss disability, as outlined above, generally related to difficulty hearing and understanding speech. As such the Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Accordingly, the Veteran's reported difficulties in hearing do not present an exceptional disability picture that would require extraschedular consideration. As shown above, the disability picture for the Veteran's service-connected bilateral hearing loss has not met the criteria for a compensable rating at any time since the grant of service connection. Therefore, an initial compensable rating for bilateral hearing loss is not warranted. ORDER An initial compensable evaluation for bilateral hearing loss is denied. ____________________________________________ Donnie R. Hachey Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs