Citation Nr: 1754149	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  13-31 969	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUE

Entitlement to an initial compensable rating prior to December 10, 2014; an evaluation in excess of 20 percent from December 10, 2014 to December 22, 2015; and an evaluation in excess of 10 percent since December 22, 2015 for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

S. Freeman, Associate Counsel
INTRODUCTION

The Veteran served had active duty service from July 1964 to July 1967.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, which awarded service connection for bilateral hearing loss and assigned a noncompensable evaluation for that disability effective November 16, 2012.

The Veteran testified at a Board hearing conducted at the RO before the undersigned Veterans Law Judge (VLJ) in May 2015.  A transcript of that hearing is of record.

The Board remanded the claim in October 2015 for additional development.


FINDINGS OF FACT

1. Prior to December 10, 2014 the competent and probative evidence of record demonstrates that the Veteran's bilateral hearing loss was manifested by Level I hearing acuity in the right ear and Level I acuity in the left ear; worse hearing has not been shown.

2. Beginning December 10, 2014 to December 22, 2015, the competent and probative evidence of record demonstrates that the Veteran's bilateral hearing loss was manifested by Level IV hearing acuity in the right ear and Level VI hearing acuity in the left ear, worse hearing has not been shown.

3. Beginning December 22, 2015, the competent and probative evidence of record demonstrates that the Veteran's bilateral hearing loss was manifested by Level IV hearing acuity in the right ear and Level V hearing acuity in the left ear.

CONCLUSIONS OF LAW

1. Prior to December 10, 2014, the criteria for a compensable disability rating for bilateral hearing loss have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86(a) (2017).

2. Beginning December 10, 2014 to December 22, 2015, the criteria for a disability rating in excess of 20 percent for bilateral hearing loss have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86(a) (2017).

3. Since December 22, 2015, the criteria for a disability rating in excess of 10 percent for bilateral hearing loss have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86(a) (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) requires VA 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, 3.326(a) (2017).

As for the duty to assist the Veteran's service treatment records and VA medical treatment records have been obtained and the Veteran was afforded adequate VA examinations in January 2013, December 2014 and December 2015.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (c).  The Veteran has not identified, and the record does not otherwise indicate, any additional relevant medical records that have not been obtained and associated with his file.

Regarding the hearing loss, when a claim has been granted and there is a disagreement as to "downstream" questions, such as the initial rating, the claim has been substantiated and there is no need to provide additional VCAA notice and the Court will not presume that a notice error is prejudicial.  See Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007).  The veteran bears the burden of demonstrating any prejudice from defective (or nonexistent) notice with respect to the downstream elements.  Goodwin v. Peake, 22 Vet. App. 128, 137 (2008).  That burden has not been met in this case as the Veteran has not alleged such prejudice.


Compliance with Prior Board Remand

The Board observes that this case was previously remanded by the Board in October 2015.  The purpose of this remand was to schedule the Veteran for a VA examination and obtain outstanding VA treatment records.  Upon remand, the Veteran underwent an audiological VA examination in December 2015 and all outstanding treatment records were associated with the claims file.  The Board therefore finds that there was substantial compliance with the prior remand order.  Stegall v. West, 11 Vet. App. 268 (1998).


Legal Criteria

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C.A § 1155; 38 C.F.R. Part 4.

In the case of an initial rating, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability.  Fenderson v. West, 12 Vet. App. 119 (1999).  Additionally, the Board must consider whether the disability has undergone varying and distinct levels of severity while the claim has been pending and provide staged rating during those periods.  Hart v. Mansfield, 21 Vet. App. 505 (2007).
Hearing loss is rated under the criteria of 38 C.F.R. § 4.85, Code 6100.  Evaluations of defective hearing are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Lendenmann v. Principi, 3 Vet. App. 345 (1993).  Hearing impairment is determined by averaging the hearing impairment at each of the four designated frequencies (1000, 2000, 3000, and 4000 Hertz).  38 C.F.R. § 4.85.  This result in a Pure tone Threshold Average for each ear.  Id.  The Pure tone Threshold Average is charted, in conjunction with the Speech Discrimination Percentage for that ear, in Table VI of 38 C.F.R. § 4.85 and the intersection of the scores provides the percentage of disability.  Id.

An exceptional pattern of hearing impairment occurs either when the pure tone threshold at each of the four specified frequencies is 55 decibels or more, 38 C.F.R. § 4.86 (a), 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.F. § 4.86(b).  If either of these provisions applies, each ear is evaluated separately.  See 38 C.F.R. § 4.86.  The Roman numeral designation for the ear with an exceptional pattern of hearing impairment is derived from Table VI or VIa, whichever results in the higher numeral.  When 38 C.F.R. § 4.86 (b) is applicable, the assigned numeral is elevated to the next higher Roman numeral.  Table VIa will also be applied when an examiner certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc.  See 38 C.F.R. § 4.85 (c).

When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.


Factual Background and Analysis

The Veteran contends that his bilateral hearing loss disability is more severe than the current disability ratings reflect.

The Veteran underwent a VA audiological assessment in October 2012.  The Veteran reported trouble hearing his wife and the television.  Finding showed moderately severe to profound high frequency sensorineural bilateral hearing loss.  The Veteran is shown to have been fitted for hearing aids at the Providence VA Medical Center (VAMC) in December 2012.

The Veteran underwent a VA examination in January 2013.  He exhibited pure tone thresholds, in decibels as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
25
20
70
80
LEFT
15
25
30
65
10

The average pure tone threshold was 55 in the right ear and 49 in the left ear.

Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 96 in the left ear.  These scores correlate to a Roman Numeral I for the right ear and Roman Number I for the left ear under Table VI of 38 C.F.R. § 4.85, resulting in a noncompensable rating.  The examiner noted that the Veteran's hearing loss does not impact his ordinary conditions of daily life.

The Veteran was reexamined at the Providence VAMC in December 2014 for his hearing loss.  He exhibited pure tone thresholds, in decibels as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
30
25
75
95
LEFT
20
30
30
65
95

The average pure tone threshold was 56 in the right ear and 55 in the left ear.  Maryland CNC speech discrimination was 76 in the right ear and 66 in the left ear.

Applying the above results from the December 2014 VA examination report to Table VI of the Rating Schedule shows Level IV hearing acuity in the right ear and Level VI hearing acuity in the left ear.  See 38 C.F.R. § 4.85, Table VI, Diagnostic Code 6100.  The pure tone thresholds do not demonstrate that consideration of an exceptional pattern of hearing is required.  See 38 C.F.R. § 4.86  Using the highest levels of hearing acuity and applying them to Table VII of the Rating Schedule, Level IV hearing acuity in the right ear and Level VI hearing acuity in the left ear results in a 20 percent disability rating for bilateral hearing impairment.  38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100.

Subsequently, the Veteran was afforded another VA examination in December 2015.  The Veteran reported that he has to watch television with the volume raised.  He stated that his wife often gets angry with him because she is tired of repeating herself.  He reported that he finds participating in conversation very frustrating.  On examination, pure tone thresholds, in decibels, were reported as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
10
70
95
LEFT
15
15
25
70
100

The average pure tone threshold was 48 in the right ear and 53 in the left ear.

Speech audiometry revealed speech recognition ability of 74 percent in the right ear and of 74 in the left ear.  These scores correlate to a Roman Numeral IV for the right ear and Roman Number V for the left ear under Table VI of 38 C.F.R. § 4.85, Table VI Diagnostic Code 6100.  The pure tone thresholds do not demonstrate that consideration of an exceptional pattern of hearing is required.  See 38 C.F.R. § 4.86.  Using the highest levels of hearing acuity and applying them to Table VII of the Rating Schedule, Level IV hearing acuity in the right ear and Level V hearing acuity in the left ear results in a 10 percent disability rating for bilateral hearing impairment.  38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100.
The Board notes that the Veteran does not have exceptional patterns of hearing loss as defined in 38 C.F.R. § 4.86.  Thereby, a higher rating is not warranted for the Veteran's bilateral hearing loss.

Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the disability.  See 38 C.F.R. § 4.1.  The Board notes that in exceptional cases where evaluations provided by the Rating Schedule are found to be inadequate, an extraschedular evaluation may be assigned which is commensurate with the veteran's average earning capacity impairment due to the service connected disorder.  38 C.F.R. § 3.321 (b).

The evidence demonstrates that the Veteran has difficulty hearing in situations that would be considered "difficult" listening environment, i.e., those settings where there are multiple talkers, reverberation, low lighting, and significant background noise.  The evidence further shows that his low frequency hearing allows him unrestricted audibility of background noise.  See December 2015 VA Examination Report.  The Board finds these symptoms neither exceptional nor unusual of a hearing loss disability, and finds them sufficiently contemplated by the rating criteria.

Therefore, the record does not reflect a disability picture that is so exceptional or unusual that the normal provisions of the Rating Schedule would not adequately compensate the Veteran for his bilateral hearing loss.  Hence, referral for consideration of an extraschedular rating for either period of time discussed above is not warranted. 

The Board also notes that the Veteran has previously been awarded service connection for tinnitus.  Under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), the United States Court of Appeals for the Federal Circuit held that a veteran may be awarded an extra-schedular 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, the evidence does not demonstrate, and the Veteran has not asserted, that there are additional symptoms or disability associated with his service connected conditions that have not yet been adequately covered by the rating criteria for each individual condition.  Accordingly, this is not an exceptional circumstance in which extra-schedular consideration may be required to compensate the Veteran for disability that can be attributed only to the combined effect of multiple conditions.


ORDER

Entitlement to an initial compensable rating prior to December 10, 2014; an evaluation in excess of 20 percent from December 10, 2014 to December 22, 2015; and an evaluation in excess of 10 percent since December 22, 2015 for bilateral hearing loss is denied.



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

Department of Veterans Affairs

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