Citation Nr: 1021663 Decision Date: 06/10/10 Archive Date: 06/21/10 DOCKET NO. 07-28 739 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to a compensable evaluation for bilateral hearing loss prior to January 15, 2010. 2. Entitlement to an evaluation greater than 10 percent for bilateral hearing loss beginning January 15, 2010. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD Tahirih S. Samadani, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1973 to August 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which denied assigned a noncompensable evaluation for the Veteran's bilateral hearing loss. Subsequently, the Appeals Management Center (AMC) assigned a 10 percent evaluation effective January 15, 2010. When this case was before the Board in December 2009, it was remanded for further development. It is now before the Board for further appellate action. In an April 2010 statement, the Veteran requested separate evaluations for the ringing in his ears and anxiety. The Board notes that the Veteran was previously granted separate evaluations for service connection for tinnitus (ringing in the ears) currently rated at 10 percent disabling and an adjustment disorder with depressed mood (claimed as anxiety) currently rated as 30 percent disabling. It appears from his April 2010 statement that he is requesting increased evaluations for these ratings. As these issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these issues, and these issues are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Prior to January 15, 2010, bilateral hearing loss was manifested by no worse than Level II hearing in the right ear and Level III hearing in the left ear. 2. Beginning January 15, 2010, bilateral hearing loss is manifested by no worse than Level IV hearing in the right ear and Level IV hearing in the left ear. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for bilateral hearing loss prior to January 15, 2010, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for an evaluation greater than 10 percent for bilateral hearing loss beginning January 15, 2010, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Pursuant to the VCAA, upon receipt of complete or substantially complete application for benefits, and prior to an initial unfavorable decision, VA must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) (Pelegrini II). The Veteran was sent a VCAA notice letter in November 2006. The letter provided him with notice of the evidence necessary to substantiate his claim, the evidence VA would assist him in obtaining, and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet App 473 (2006). The Veteran has established his status as a veteran. He received notice as to the notice elements outlined in Pelegrini and the second, third, fourth, and fifth elements outlined in Dingess, via the letter November 2006. Therefore, the duty to assist has been met. In developing his claim, VA obtained the Veteran's service treatment records (STRs), and VA treatment records. In addition, VA examinations were provided in December 2006 and January 2010. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board acknowledges that the claims file was not available for review at the December 2006 examination. The case of Green v. Derwinski, 1 Vet. App. 121 (1991), held that VA's duty to assist includes conducting a thorough and contemporaneous medical examination that takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. The Court, however, has never held that in every case an examiner must review all prior medical records before issuing a medical opinion or diagnosis. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The Court recently held that the absence of claims file review does not necessarily render an examination inadequate or reduce the probative value of a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board observes that the purpose of the December 2006 examination was to determine the current severity of the Veteran's bilateral hearing loss. On review, the examination contains findings sufficient for rating purposes and an additional examination, to include claims file review, is not warranted. Furthermore, the claims file was available for review by the examiner during the January 2010 examination. There is no reported evidence that has not been obtained. No further development is required to comply with the provisions of the VCAA or the implementing regulations. Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will address the merits of the claim. II. Applicable laws and regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. 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). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Hearing loss is evaluated under Code 6100, which provides that numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85, based on puretone thresholds and speech discrimination; 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). Table VIA may also be used 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 Table which yields the better result for the Veteran is to be selected. 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. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. 38 C.F.R. § 4.85(a). III. Analysis The Veteran claims that his bilateral hearing loss disability is not properly rated. The October 2006 VA audiological examination revealed the following pure tone thresholds, in decibels: Hertz 500 1000 2000 3000 4000 AVG Right -- 15 30 60 70 44 Left -- 15 30 60 65 43 The average pure tone threshold (using the four 1000 to 4000 frequencies) was 43.75 decibels in the right ear and 42.5 decibels in the left ear. Speech audiometry testing revealed speech recognition ability of 88 percent in the right ear and 92 percent in the left ear. The examiner noted that these results were indicative of mild to moderately severe high frequency sensorineural hearing loss, bilaterally. The Veteran submitted private audiological examinations that were conducted in September 2005 and December 2006. These examination reports are in graph form, which the Board is unable to interpret. See Kelly v. Brown, 7 Vet. App. 471 (1995) (the Board may not interpret graphical representations of audiometric data). It is also unclear, however, whether the air conduction and speech audiometry testing described in the examination reports were conducted under the conditions, or utilized the specific testing, required by 38 C.F.R. § 4.85. The findings in these reports, accordingly, may not be used for evaluation purposes. The December 2006 VA audiological examination revealed the following pure tone thresholds, in decibels: Hertz 500 1000 2000 3000 4000 AVG Right -- 15 40 55 70 45 Left -- 15 35 60 65 44 The average pure tone threshold (using the four 1000 to 4000 frequencies) was 45 decibels in the right ear and 43.75 decibels in the left ear. Speech audiometry testing revealed speech recognition ability of 88 percent in the right ear and 80 percent in the left ear. The examiner noted that these results were indicative of moderate bilateral high frequency sensorineural hearing loss. The examiner noted that these results revealed no significant change in pure tone findings as compared to the December 2004 VA examination. The Veteran submitted a private audiological examination reports that were conducted in August 2007 and February 2008. Except for speech recognition findings, the exact findings of the August 2007 audiological examination were not included. In addition, the February 2008 report is in graph form, which the Board is unable to interpret. See Kelly v. Brown, 7 Vet. App. 471 (1995) (the Board may not interpret graphical representations of audiometric data). It is also unclear whether the air conduction and speech audiometry testing described in the examination reports were conducted under the conditions, or utilized the specific testing, required by 38 C.F.R. § 4.85. The findings in these reports, accordingly, may not be used for evaluation purposes. The January 2010 VA audiological examination revealed the following pure tone thresholds, in decibels: Hertz 500 1000 2000 3000 4000 AVG Right -- 30 65 75 75 61 Left -- 35 60 75 70 60 The average pure tone threshold (using the four 1000 to 4000 frequencies) was 61.25 decibels in the right ear and 60 decibels in the left ear. Speech audiometry testing revealed speech recognition ability of 82 percent in the right ear and 78 percent in the left ear. The examiner noted that these results were indicative of moderate bilateral high frequency sensorineural hearing loss. A. Prior to January 15, 2010 The October 2006 audiometry results merits assignment of a Level II hearing loss on the right, and a Level I on the left. These values intersect on Table VII at a zero percent evaluation. The December 2006 audiometry results merits assignment of Level II hearing loss in the right ear and Level III on the left. These values intersect on Table VII at a zero percent evaluation. The mechanical application of the Rating Schedule does not permit assignment of a compensable evaluation for bilateral hearing loss prior to January 15, 2010. B. Beginning January 15, 2010 As noted earlier, the Veteran submitted private audiological examination reports for examinations conducted in September 2005, December 2006, August 2007 and February 2008. As it is unclear, whether the air conduction and speech audiometry testing described in the examination reports were conducted under the conditions, or utilized the specific testing, required by 38 C.F.R. § 4.85, the findings in these reports may not be used for evaluation purposes. Furthermore, several of the private examination reports were in graph form, which the Board is unable to interpret. See Kelly v. Brown, 7 Vet. App. 471 (1995) (the Board may not interpret graphical representations of audiometric data). Therefore, no change to the beginning date of the rating stage is required based on these examinations. In January, audiometric testing in connection with the claim for increased evaluation resulted in assignment of a Level IV hearing acuity on the right, and Level IV on the left. These correspond to a 10 percent evaluation on Table VII. No higher evaluation is available under the Schedule. This rating is, properly, effective as of the date of the first evidence establishing that the worsening hearing loss met the numerical requirements for an increased evaluation. The Board notes that the evidence does not show an exceptional pattern of hearing impairment prior to or beginning January 15, 2010. Therefore a higher evaluation under 38 C.F.R. § 4.86 is not warranted. Disability ratings for hearing impairment are derived by the mechanical application of the rating schedule. Lendenmann v. Principi, 3 Vet. App. 345 (1992). For these reasons, an evaluation greater than 10 percent is not warrant for the period beginning January 15, 2010. IV. Extraschedular Consideration Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2009). The question of an extraschedular rating is a component of a claim for an increased rating. See 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, 243-44 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service- connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step--a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. In this case, the Veteran's disabilities are rated under a diagnostic code that evaluates hearing impairment. This Diagnostic Code essentially takes into account the difficulty hearing reported by the Veteran. As such, the schedule is adequate to evaluate the disability, and referral for consideration of an extraschedular rating is not warranted. Since the schedular evaluation contemplates the claimant's level of disability and symptomatology, the Board does not need to determine whether an exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Despite this, the Board notes that there is no evidence showing marked interference with the Veteran's work. There is also no evidence of frequent hospitalizations due to his hearing loss. The Board has considered whether there is any other basis for granting a compensable or increased ratings other than those discussed above, but has found none. In particular, the Board has considered the benefit-of-the-doubt doctrine, but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claims. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. ORDER A compensable evaluation for bilateral hearing loss prior to January 15, 2010 is denied. An evaluation greater than 10 percent for bilateral hearing loss beginning January 15, 2010 is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs