Citation Nr: 1211725 Decision Date: 03/30/12 Archive Date: 04/05/12 DOCKET NO. 98-00 313 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to a rating in excess of 30 percent for bilateral hearing loss. 2. Entitlement to a total disability rating by reason of individual unemployability (TDIU). 3. Whether new and material evidence was received to reopen a claim for entitlement to service connection for a central audio processing disorder (CAPD), including as a result of traumatic brain injury (TBI). REPRESENTATION Appellant represented by: Michael Freske, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1961 to July 1965. This matter previously came before the Board of Veterans' Appeals (Board) on appeals from February 2001 and January 2009 rating decisions of the VA Regional office (RO) in Milwaukee, Wisconsin. The Veteran subsequently filed a notice of Disagreement (NOD) with a December 2011 rating decision of the Milwaukee RO that reopened but denied the Veteran's claim for a CAPD as the result of TBI. The NOD was received by VA in March 2012, but a statement of the case (SOC) has not yet been issued with respect to that claim. Insofar as an unprocessed notice of disagreement should be remanded, not referred, to the RO for issuance of an SOC, the Board has also taken jurisdiction over that issue. Manlincon v. West, 12 Vet. App 238, 240-241. This case was previously remanded by the Board, most recently in August 2011. The Veteran testified before the undersigned Acting Veterans Law Judge at a May 2011 video conference hearing. The issues of whether new and material evidence was received in order to reopen a claim for service connection for CAPD due to TBI and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDING OF FACT The Veteran's bilateral hearing loss is not shown to be manifested by worse than a level III impairment of auditory acuity in the right ear and level VII impairment of acuity in the left ear, at any time during the appeal period. CONCLUSION OF LAW The criteria for the assignment of a rating in excess of 30 percent for the Veteran's service connected bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5017 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.85, 4.86, diagnostic code 6100 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter in August 2008 which explained VA's duty to assist him with obtaining evidence in support of his claim. It explained that in order to receive a higher rating for his bilateral hearing loss, he needed to show that disability had become worse. It also explained the general manner whereby VA assigns ratings and effective dates for service connected disabilities. In addition to providing the aforementioned notices, VA also must make reasonable efforts to assist the claimant with obtaining the evidence that is necessary in order to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including VA treatment records, private treatment records, and a transcript of the Veteran's testimony at the May 2011 hearing. The Veteran was also afforded multiple VA audiological evaluations which adequately documented the severity and functional effects of his hearing loss. The most recent examination which was conducted in November 2011 quantified the extent of the Veteran's hearing loss in terms of Hertz and provided a Maryland CNC score for both ears. The examiner had access to and reviewed all the evidence in the claims file. An opinion was provided as to the effect that the hearing loss had on the Veteran's employment. The examination report is suitable for use in rating the disability on appeal. In its August 8, 2011 remand, the Board instructed that VA request authorizations for the Veteran to obtain his private audiological treatment records and to obtain his VA treatment records; requests for the Veteran's private treatment records were made and the Veteran was notified of this by letter dated September 2011, and the Veteran's VA treatment records were obtained and associated with the claims file. Also, in accordance with the remand instructions, the private audiologists who evaluated the Veteran were contacted in order to determine the type of speech discrimination testing that was performed by them. Finally, a new VA audiological evaluation was obtained in accordance with the instructions that were set forth in the remand. Therefore, there was substantial compliance with the instructions which were set forth in the August 8, 2011 remand. Increased Rating The Veteran contends that his hearing loss is more severe than is contemplated by the currently assigned 30 percent rating. He contends that he is totally disabled by his impaired hearing. Disability ratings are determined by applying criteria that are set forth in the VA's Schedule for Rating Disabilities (38 C.F.R. Part 4). Ratings are based on average impairments of earning capacity resulting from particular diseases and injuries and the residuals thereof in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities are described utilizing diagnostic codes set forth in 38 C.F.R. Part 4. Where there is a question as to which of two evaluations 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. See 38 C.F.R. § 4.7. Where entitlement to compensation for a service-connected disease or injury already has been established and entitlement to an increase in the disability rating is at issue, the present level of disability is of primary importance. See, e.g., Franciso v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluations of bilateral hearing loss disabilities range from non-compensable to 100 percent. This is based on impairment of hearing acuity as measured by the results of pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz and the Maryland CNC controlled speech discrimination test. To determine the degree of disability from service-connected hearing loss, the rating schedule sets forth eleven auditory acuity levels ranging from Level I for essentially normal hearing to Level XI for profound deafness. These are set forth in Table VI. 38 C.F.R. § 4.85. If the examiner certifies that the use of speech discrimination testing is inappropriate due to language difficulties, inconsistent speech discrimination scores, or an exceptional pattern of hearing impairment as defined by 38 C.F.R. § 4.86, a level ranging from Level I to Level XI is assigned utilizing pure tone threshold testing alone pursuant to Table VIA. 38 C.F.R. § 4.85. The Board observes that schedular "...disability ratings for hearing impairment are 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 Veteran submitted a copy of a private audiological test report from July 2008. Pure tone decibel loss at that time was as follows: HERTZ 1000 2000 3000 4000 RIGHT 35 70 No response No response LEFT 30 75 105 105 The Veteran was administered speech discrimination testing, however this was using the CID W-22 test list rather than the Maryland CNC, and therefore the results are not usable for VA rating purposes. The Veteran was afforded a VA audiological evaluation in September 2008. At that time his pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 RIGHT 35 65 105+ 105+ LEFT 35 80 105+ 105+ The average pure tone threshold in decibels was 77.5 for the right ear and 81.25 for the left ear. The Veteran's speech recognition ability was 88 percent in the right ear and 84 percent in the left ear. The diagnosis was bilateral mild to profound sensorineural hearing loss. This yields a level III impairment of hearing in the right ear and a level III impairment of hearing in the left ear. Applying Table VII, this yields a 0 percent rating. The Veteran was noted to have constant annoying and disturbing tinnitus. However, it is noted that the Veteran was previously granted a 30 percent rating because his hearing loss formerly met the definition of an exceptional pattern of hearing impairment, allowing him to be rated based on pure tone thresholds alone. Since his hearing at 1000 decibels got worse, he no longer meets the criteria for an exceptional pattern of hearing impairment. 38 C.F.R. § 4.86 (definition of exceptional pattern of hearing impairment). Nonetheless, because no actual improvement in hearing was shown, the 30 percent rating was retained based on severe high frequency hearing loss. The Veteran had another private audiogram in September 2008. That showed pure tone decibel loss as follows: HERTZ 1000 2000 3000 4000 RIGHT 35 75 105 105 LEFT 45 85 110+ 110+ The Veteran was administered speech discrimination testing, however this was using live voice and PB word list test rather than the Maryland CNC, and therefore the results are not usable for VA rating purposes. The Veteran was afforded a second VA audiological evaluation in August 2010. At that time his pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 RIGHT 35 70 105+ 105+ LEFT 25 90 105 105 The average pure tone threshold in decibels was 78.75 for the right ear and 81.25 for the left ear. The Veteran's speech recognition ability was 84 percent in the right ear and 80 percent in the left ear. The Veteran had an exceptional pattern of hearing impairment in the left ear only. The diagnosis was normal hearing sloping to profound high frequency sensorineural hearing loss in the left ear and moderate to profound high frequency sensorineural hearing loss in the right ear. This yields a level III impairment of hearing in the right ear and a level VII impairment of hearing in the left ear. Applying Table VII, this yields a 20 percent rating. The Veteran's work problem as a result of his hearing difficulties was constant annoying tinnitus in both ears that affects both speech comprehension and concentration. The examiner further noted that the Veteran's hearing loss and tinnitus disabilities, alone or in combination, should not be a barrier to a wide range of employment settings. Individuals with this Veteran's degree of hearing loss and tinnitus do function well in most occupational settings if accommodations for the hearing loss are made by the employer. Most occupations do not set physical requirements for hearing nor do they offer hearing aids for their employees. Some occupations such as firefighting, law enforcement, and pilots have hearing requirements which may dictate employment qualifications. Some employers allow employees to wear hearing aids and some do not. This is to say that the Veteran's hearing loss and tinnitus would cause problems with specific vocations and work environments where special accommodations were not permitted. He might have trouble working successfully in noisy environments and in environments which require him to use non-face-to-face communications equipment or in jobs which require a great deal of attention to high pitched sounds (such as monitoring medical equipment or other beeps and pings). At his hearing in May 2011 the Veteran testified that he was unable to work because employers illegally discriminate against hearing impaired persons. His last job was in welding, which was his primary background. However, he has also worked in construction and cement work, inspection, and sales. When he was doing the inspection job he could not hear air leaks in air equipment. He also worked at the counter doing sales but would get telephone orders wrong. As a result, he was let go from that employment. He has trouble hearing when he is not looking at someone. He has trouble with everyday conversation. He uses hearing aids when watching television so that he can keep it at a reasonable volume that does not disturb others. It is difficult to hear in the presence of background noise. He claims that several employers used "ingenious ways" of letting him go to cover up the fact they were discriminating against him illegally due to his hearing loss. He believes his hearing loss caused him to get a divorce and to become estranged from his daughter. The Veteran's hearing was reexamined by VA in November 2011. At that time his pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 RIGHT 30 65 105+ 105+ LEFT 25 85 105+ 105+ The average pure tone threshold in decibels was 76.25 for the right ear and 80 for the left ear. The Veteran's speech recognition ability was 84 percent in the right ear and 84 percent in the left ear. There was an exceptional pattern of hearing impairment in the left ear. The diagnosis was normal to profound sensorineural hearing loss. This yields a level III impairment of hearing in the right ear and a level VII impairment of hearing in the left ear. Applying Table VII, this yields a 20 percent rating. The examiner reiterated his earlier comments about employability. The Board notes that the Veteran argued that the VA examinations that the Veteran was provided in connection with this claim do not adequately reflect his hearing loss because they were administered in a sound-controlled setting and at higher volumes than are encountered with every day speech. In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court held that VA's policy to conduct audiometric testing in sound-controlled rooms was neither plainly erroneous nor otherwise inconsistent with VA's regulations concerning medical evaluations. Id at 453. Similarly, there is no indication that the Maryland CNC test was administered improperly in this case and it is intended to measure speech recognition ability and not decibel loss. Martinak also held that, in addition to objective test results, VA audiometric evaluations must fully describe the functional effects caused by a hearing disability. Id at 455. In this case, in addition to reporting the results of audiometric and speech discrimination testing, VA examiners noted that the Veteran complained of constant annoying and disturbing tinnitus that affected the ability to understand conversations and diminished concentration. Thus, "the examiner[s] did elicit information from the appellant concerning the functional effects of his disability. That is all the applicable regulatory provisions require." Id at 455. 38 C.F.R. §§ 4.1, 4.2, 4.10. In any event, even if the prior examinations did not adequately document the functional effects of the Veteran's hearing loss, this would be harmless in this case as the Veteran gave a detailed description of how his hearing loss affects him at the May 2011 hearing. The evidence does not show that the Veteran is entitled to a rating in excess of 30 percent due to his hearing loss. The results of audiometric and speech discrimination testing do not support a higher rating. In this case, the Veteran claims that his level of functional impairment is more severe than is accounted for by application of the rating criteria set forth in 38 C.F.R. § 4.85 & 4.86. When either a claimant or the evidence of record suggests that a schedular rating may be inadequate, the Board must specifically adjudicate the issue of whether referral for an extraschedular rating is warranted. See, e.g., Colayong v. West, 12 Vet. App. 524, 536 (1999). The determination of whether a claimant is entitled to an extraschedular rating pursuant to 38 C.F.R. § 3.321(b) is a three step inquiry. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the schedular evaluation is inadequate. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In order to make this determination, the level of severity and symptomology of the claimant's service connected disability must be compared to the established criteria in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptoms, the assigned schedular evaluation is adequate. Id. If they do not, the VA must undertake the second step of the inquiry, which is to determine whether the claimant's disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id at 115-116. If an analysis of the first two steps indicates that the first two factors exist, the third step is to refer the case to the Undersecretary for Benefits or the Director of the Compensation and Pension Service for a determination as to whether justice requires the assignment of an extraschedular rating. Id at 116. In this case, the Veteran's symptoms of hearing loss, including difficulty understanding speech as a result of reduced audio acuity, are expressly contemplated by the rating schedule. Thus, the first prong of the Thun test is not met. In any event, there is also no evidence of material interference with employment. While the claims file reflects that one employer admitted to letting the Veteran go because he was unable to hear well enough to take phone orders or to hear leaks in equipment, the Veteran has had a number of jobs in different fields. There is no indication that the Veteran's difficulties with any of these other jobs involved his hearing disability. In fact, the Veteran tacitly admitted that employers had other reasons for letting him go by speculating that these other reasons were cover ups for a desire to illegally discriminate against him. As the VA examiner noted, individuals with the Veteran's level of hearing impairment do well in a wide range of employment settings, as long as the employer makes some accommodations for the employee's hearing problems. The inability to perform one particular type of job, when the Veteran has experience with various lines of work, is insufficient to show marked interference with employment. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is inapplicable in the instant case because the preponderance of the evidence is against the Veteran's claim. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, the appeal is denied. ORDER A rating in excess of 30 percent for bilateral hearing loss is denied. REMAND In March 2012 the Veteran filed a notice of disagreement (NOD) with a December 2011 rating decision that reopened a claim for service connection for CAPD including as due to TBI but denied the claim on the merits. An unprocessed notice of disagreement should be remanded, not referred, to the RO for issuance of an SOC. Manlincon v. West, 12 Vet. App 238, 240-241. This claim is remanded for issuance of a statement of the case. See 38 C.F.R. §§ 3.160(c), 19.26 (2008). See also Manlincon, 12 Vet. App. at 240-241. The Veteran's TDIU claim is "inextricably intertwined" with the claim for service connection for CAPD and therefore the CAPD claim must be decided prior to the adjudication of the Veteran's TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Issue the Veteran an SOC that addresses the issue of entitlement to service connection for CAPD, including as a residual of TBI. The Veteran must be advised of the time limit in which he may file a substantive appeal. 38 C.F.R. § 20.302(b). To perfect the appeal, he must timely file a substantive appeal; otherwise the appeal should be closed without returning it to the Board. Thereafter, if the appeal is timely perfected, and if indicated, this issue should be returned to the Board for the purpose of appellate disposition. 2. After this is done, readjudicate the Veteran's claim for TDIU. If the determination remains unfavorable to the Veteran, he should be provided with a supplemental statement of the case (SSOC) and given an opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ G. A. WASIK Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs