Citation Nr: 1032012 Decision Date: 08/25/10 Archive Date: 09/01/10 DOCKET NO. 04-42 119 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a compensable disability rating for hearing loss prior to July 6, 2005. 2. Entitlement to a disability rating greater than 30 percent for hearing loss between July 6, 2005, and June 1, 2009. 3. Entitlement to a compensable disability rating for hearing loss effective June 1, 2009. 4. Entitlement to a disability rating greater than 40 percent prior to September 1, 2010, and greater than 20 percent thereafter for residuals of low back strain. 5. Entitlement to a total disability rating based on individual unemployability (TDIU), including on an extraschedular basis. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from February 1960 to February 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which assigned a 20 percent rating for low back strain effective January 28, 2004, and denied the Veteran's claim for a compensable disability rating for hearing loss. A Travel Board hearing was held at the RO in June 2009 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the claims file. In August 2005, the RO assigned a 40 percent rating for low back strain effective January 28, 2004, and a 30 percent rating for hearing loss effective July 6, 2005. This decision was issued to the Veteran and his service representative in September 2005. In October 2008, the RO proposed to reduce the disability rating assigned for service-connected hearing loss from 30 percent to zero percent. In April 2009, the RO implemented the proposed reduction and assigned a zero percent rating for hearing loss effective June 1, 2009. In September 2009, the Board remanded the Veteran's appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The Board notes that, in March 2010, the RO proposed to reduce the disability rating assigned for service-connected low back strain from 40 percent to 20 percent. In May 2010, the RO implemented this proposed reduction and assigned a 20 percent rating for low back strain effective September 1, 2010. The Board notes that, in Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) recently held that a TDIU claim cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability. The Court also found in Rice that, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. The record in this case indicates that the Veteran has asserted that he is not employable by reason of his service-connected disabilities. The Board notes that the RO previously had denied the Veteran's TDIU claim in May 2006 and in September 2008. The Veteran did not initiate an appeal with respect to either of these rating decisions. In light of Rice, this claim is addressed in the REMAND portion of the decision below and is REMANDED again to the RO/AMC. The issues of entitlement to a disability rating greater than 40 percent prior to September 1, 2010, and to a disability rating greater than 20 percent thereafter for residuals of low back strain, and entitlement to a compensable disability rating effective June 1, 2009, for hearing loss, also are addressed in the REMAND portion of the decision below and are REMANDED to the RO/AMC. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. The competent medical evidence shows that, prior to July 6, 2005, the Veteran's hearing loss in the left ear was evaluated at a level of Roman numeral V and his hearing loss in the right ear was evaluated at a level of Roman numeral I. 2. The competent medical evidence shows that, between July 6, 2005, and June 1, 2009, the Veteran's hearing loss in the left ear was evaluated at a level of Roman numeral X and his hearing loss in the right ear was evaluated at a level of Roman numeral IV. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating prior to July 6, 2005, for hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.85, 4.86, Tables VI, VIA, and VII, and Diagnostic Code (DC) 6100 (2009). 2. The criteria for a disability rating greater than 30 percent between July 6, 2005, and June 1, 2009, for hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.85, 4.86, Tables VI, VIA, and VII, and DC 6100 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In a March 2004 letter, VA notified the appellant of the information and evidence needed to substantiate and complete his claim, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter informed the appellant to submit medical evidence showing that his service-connected hearing loss had worsened. The Veteran also was informed of when and where to send the evidence. After consideration of the contents of this letter, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As will be explained below in greater detail, the evidence does not support granting an increased rating for hearing loss. The claimant also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Additional notice of the five elements of a service-connection claim was provided in March 2006, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With respect to the timing of the notice, the Board points out that the Veterans Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the March 2004 letter was issued to the appellant and his service representative prior to the May 2004 rating decision which denied the benefits sought on appeal; thus, this notice was timely. Any defect in the timing or content of the notice provided to the Veteran and his service representative has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the Board. It appears that all known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. Although the Veteran testified before the Board in June 2009 that he had filed for Social Security Administration (SSA) disability benefits, SSA subsequently notified the RO in January 2010 that, in fact, the Veteran had not filed for disability benefits and no records were available for review. The Veteran subsequently reported to the RO that he had not filed for SSA disability benefits, contradicting his earlier Travel Board hearing testimony. The RO subsequently determined in a February 2010 formal finding that there were no SSA records available for review. In Bryant v. Shinseki, --- Vet. App. ----, No. 08-4080 (Jul. 1, 2010), the Court recently held that 38 C.F.R. 3.103(c)(2) (2009) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted the basis of the prior determination and noted the element of the claim that was lacking to substantiate the claim for benefits. The VLJ specifically noted the issue as entitlement to an increased evaluation for hearing loss rated at zero percent disabling prior to July 6, 2005, as 30 percent disabling prior to June 1, 2009, and as zero percent disabling thereafter. The representative and the VLJ then asked questions to ascertain whether the Veteran's disability had worsened since his prior evaluation. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. The representative specifically asked the Veteran about any treatment of the Veteran's hearing loss. He ascertained that the Veteran had received recent VA outpatient treatment for this disability and the Board subsequently reviewed the claims file to ensure that those records were included. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the element necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the element necessary to substantiate his claim for benefits. The Veteran's representative and the VLJ asked questions to draw out the Veteran's current level of disability, the only element of the claim in question. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that any error in notice provided during the Veteran's hearing constitutes harmless error. As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant) contains competent evidence that the claimant has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's act of service; but does not contain sufficient medical evidence for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has been provided with VA examinations which address the current nature and severity of his service-connected hearing loss. The Veteran reported in March 2004 that his service- connected hearing loss was markedly worse and accompanied by some lightheadedness and loss of equilibrium. After completing audiology testing of the Veteran in July 2005, the VA examiner concluded that the Veteran's employment, social, and daily activity functioning would not be adversely affected by his hearing loss. This VA examiner also determined in May 2006 that the Veteran's hearing loss would not render him unemployable and he could be employed gainfully with amplification, assistive technology, or vocational rehabilitation. These examination reports address the impact of the Veteran's hearing loss on his daily functioning as necessary at least prior to June 1, 2009. Martinak v. Nicholson, 21 Vet. App. 447 (2007). In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. The Veteran contends that his service-connected hearing loss is more disabling than currently evaluated. He testified in June 2009 that his hearing loss affected him every day, making it difficult to hear conversations with others, including his wife. He also testified that he wore hearing aids in both ears. In general, disability evaluations are assigned by applying a schedule of ratings that represent, as far as can be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria that must be met for specific ratings. The regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole recorded history. 38 C.F.R. § 4.2; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that "staged" ratings are 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 Veteran's service-connected hearing loss currently is evaluated as zero percent disabling (non-compensable) prior to July 6, 2005, and as 30 percent disabling between July 6, 2005, and June 1, 2009, under 38 C.F.R. § 4.85, DC 6100. See 38 C.F.R. § 4.85, DC 6100 (2009). Diagnostic Code (DC) 6100, located in 38 C.F.R. § 4.85, sets out the criteria for evaluating hearing impairment using puretone threshold averages and speech discrimination scores. Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85; there is no room for subjective interpretation. Under Table VI, a Roman numeral designation (I through XI) for hearing impairment is found based on a combination of the percent of speech discrimination scores and the puretone threshold average. 38 C.F.R. § 4.85(b). Table VIA will be used, which assigns a Roman numeral designation solely on the puretone threshold average, when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. 38 C.F.R. § 4.85(c). The puretone threshold average is the sum of the puretone threshold at 1000, 2000, 3000 and 4000 Hertz, divided by four. 38 C.F.R. § 4.85(d). The Roman numeral designations determined using Table VI or Table VIA are combined using Table VII to find the percentage evaluation to be assigned for the hearing impairment. 38 C.F.R. § 4.86 allows for the use of either Table VI or Table VIA in determining the appropriate numeric designation when there are exceptional patterns of hearing impairment. The regulation is applicable where testing shows that the Veteran had puretone thresholds of 55 decibels or more in each of the specified frequencies (1000, 2000, 3000 and 4000 Hertz) or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 or more decibels at 2000 Hertz. See 38 C.F.R. § 4.86. The Board finds that the preponderance of the evidence is against assigning a compensable disability rating prior to July 6, 2005, and a disability rating greater than 30 percent prior to June 1, 2009, for hearing loss. Prior to July 6, 2005, the Veteran's service-connected hearing loss was not compensably disabling. On VA audiology examination in March 2004, the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 50 80 80 LEFT 15 30 90 105+ 105+ Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 80 percent in the left ear. The audiologist concluded that the Veteran had normal hearing in the right ear from 250-1500 Hertz sharply falling to a severe high frequency sensorineural loss. The audiologist also concluded that the Veteran had hearing within normal limits to a mild loss from 250-1500 Hertz precipitously falling to a profound high frequency sensorineural hearing loss. On VA ENT examination in March 2004, the Veteran complained of some lightheadedness and sense of disequilibrium associated with his hearing problems. He also reported a history of markedly diminished hearing over the past several years. Otologic examination was unremarkable. The ENT examiner noted the presence of bilateral high frequency sensorineural hearing loss. The diagnoses included bilateral high frequency sensorineural hearing loss. The assignment of disability ratings for hearing impairment is 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, 349 (1992). The medical evidence shows that, on VA examination in March 2004, the Veteran's right ear hearing loss was assigned a Roman numeral of I and the left ear hearing loss was assigned a Roman numeral of V. This equates to a 0 percent rating for hearing loss under Table VI. See 38 C.F.R. § 4.85, Tables VI, VII. Neither of the examiners who saw the Veteran in March 2004 certified that use of speech discrimination test was not appropriate. The Board recognizes that there is an indication in March 2004 of an exceptional pattern of hearing impairment in the Veteran's left ear. Thus, the Veteran's left ear hearing loss would be assigned a Roman numeral of VIII under Table VIA. See 38 C.F.R. §§ 4.85, 4.86(b), Table VIA. This still equates to a 0 percent rating for hearing loss, however. See 38 C.F.R. § 4.85, Tables VI, VII. The Veteran has not identified or submitted any evidence showing that his service-connected hearing loss was compensably disabling prior to July 6, 2005. Thus, the Board finds that the criteria for a compensable disability rating prior to July 6, 2005, for hearing loss are not met. The Veteran also is not entitled to a disability rating greater than 30 percent between July 6, 2005, and June 1, 2009. On VA examination on July 6, 2005, the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 55 75 85 LEFT 20 45 105 105+ 105+ Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 36 percent in the left ear. The audiologist stated that the Veteran had normal to severe sensorineural hearing loss in the right ear and normal to profound sensorineural hearing loss in the left ear. On VA ENT examination in July 2005, it was noted that the Veteran's audiogram had shown bilateral high frequency sensorineural hearing loss, significantly worse in the left ear than in the right ear. The VA ENT examiner stated that the Veteran's current employment, social, and daily activity functioning should not be affected adversely by his service-connected hearing loss. The diagnoses included bilateral high frequency sensorineural hearing loss. On VA audiology examination in May 2006, the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 30 55 75 LEFT 20 35 90 105+ 105+ Speech audiometry revealed speech recognition ability of 84 percent in each ear. The audiologist stated that the Veteran's hearing was within normal limits from 250-1000 Hertz, sloping to a mild to severe sensorineural hearing loss from 2000- 8000 Hertz in the right ear. He also stated that the Veteran's hearing was within normal limits from 250-500 Hertz, sloping to a mild to profound sensorineural hearing loss from 1000-8000 Hertz in the left ear. The audiologist stated that the Veteran's hearing loss would not render him unemployable and he could achieve gainful employment with amplification, assistive technology, or vocational rehabilitation. The Board notes again that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann, 3 Vet. App. at 349. On VA examination in July 2005, the Veteran's right ear hearing loss was assigned a Roman numeral of IV and the left ear hearing loss was assigned a Roman numeral of X. This equates to a 30 percent rating for hearing loss under Table VI. See 38 C.F.R. § 4.85, Tables VI, VII. In March 2006, the Veteran's right ear hearing loss was assigned a Roman numeral of II and the left ear hearing loss was assigned a Roman numeral of IV. This equates to a 0 percent rating for hearing loss under Table VI. Id. Neither of the examiners who saw the Veteran in July 2005 and March 2006 certified that use of speech discrimination test was not appropriate and there is no indication of an exceptional pattern of hearing impairment such that 38 C.F.R. § 4.85, Table VIA, should be used. See 38 C.F.R. §§ 4.85, 4.86, Table VIA. The Veteran has not identified or submitted any evidence demonstrating his entitlement to a disability rating greater than 30 percent between July 6, 2005, and June 1, 2009, for service-connected hearing loss. In summary, the Board determines that the criteria for a disability rating greater than 30 percent between July 6, 2005, and June 1, 2009, for hearing loss are not met. ORDER Entitlement to a compensable disability rating for hearing loss prior to July 6, 2005 is denied. Entitlement to a disability rating greater than 30 percent between July 6, 2005, and June 1, 2009, for hearing loss is denied. REMAND The Veteran has contended that his service-connected hearing loss is more disabling than currently evaluated. As discussed above, the Board has found that the criteria for an increased rating for hearing loss are not met at any time prior to June 1, 2009. The Board notes that, in the April 2009 rating decision, the RO implemented the rating reduction from 30 to 0 percent for hearing loss effective June 1, 2009, was based on the Veteran's January 2009 VA examination. Unfortunately, a review of the claims file shows that the January 2009 VA examination did not address the functional impact of the Veteran's hearing loss. The Court has held that VA audiology examinations must address the functional impact of any service-connected hearing loss. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). Because the Veteran's January 2009 VA audiology examination was the basis for the rating reduction for hearing loss and did not include any findings concerning the functional impact of his hearing loss, and in light of Martinak, this examination report must be returned as inadequate. See 38 C.F.R. § 4.2 (2009). Given the length of time which has elapsed since this examination, the Board finds that, on remand, the Veteran should be scheduled for updated examination which addresses the current severity of his service-connected hearing loss and discusses the functional impact of this disability. The Veteran also has contended that his service-connected low back strain is more disabling than currently evaluated. His VA treating physician submitted additional treatment records in support of this claim along with a letter describing the Veteran's low back symptomatology in May 2010. Unfortunately, this evidence was submitted without a waiver of RO jurisdiction and was not reviewed by the RO before it certified the Veteran's appeal to the Board in July 2010. Accordingly, remand is required. 38 C.F.R. § 20.1304(c) (2009). As noted in the Introduction, the Veteran essentially has contended that he is unemployable as a result of his service- connected disabilities. The Veteran's most recent TDIU claim was denied by the RO in a September 2008 rating decision and was not appealed. The Veteran filed a new TDIU claim in March 2010 when he contended in a statement that his service-connected disabilities had prevented him from working since 1977. The Board notes that, although the Veteran has been advised of the requirements for substantiating a TDIU claim, he currently does not meet the schedular criteria for a TDIU. See 38 C.F.R. § 4.16 (2009). Adjudication of the Veteran's claim for a compensable disability rating for hearing loss effective June 1, 2009, also may impact his entitlement to a TDIU. Given the Veteran's contentions, and in light of Rice, the Board finds that, on remand, the RO should re-adjudicate his TDIU claim, including on an extraschedular basis as appropriate. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be scheduled for an examination to determine the current nature and severity of his service-connected hearing loss. All appropriate testing should be conducted. The examiner must describe fully the functional impact of the Veteran's service-connected hearing loss in the examination report. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). 2. The Veteran also should be scheduled for an examination to determine the effects of his residuals of a low back strain and/or hearing loss on his ability to obtain and maintain employment. The examiner is asked to obtain a complete occupational history from the Veteran, if possible, and to provide an opinion as to whether, following a review of the claims file and physical examination of the Veteran, the Veteran's service- connected residuals of a low back strain and/or hearing loss, alone or in combination, render him unable to secure or follow a substantially gainful occupation (more than marginal employment). A complete rationale must be provided for any opinion expressed. 3. Thereafter, readjudicate the Veteran's increased rating claim for low back strain, his claim for a compensable disability rating effective June 1, 2009, for hearing loss, and his TDIU claim, including on an extraschedular basis. If the benefits sought on appeal remains denied, the Veteran and his service representative should be provided a supplemental statement of the case. An appropriate period of time should be allowed for response. 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. 2009). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs