Citation Nr: 1216167 Decision Date: 05/04/12 Archive Date: 05/10/12 DOCKET NO. 11-18 722 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an increased initial rating for bilateral hearing loss, rated as 20 percent disabling from March 24, 2010, and noncompensable from May 27, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from November 1950 to August 1954. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In that decision, service connection was established for bilateral sensorineural hearing loss and a 20 percent rating was assigned, effective March 24, 2010. That rating was reduced to a noncompensable rating on May 27, 2010. FINDINGS OF FACT 1. The Veteran filed a claim for VA compensation benefits on March 24, 2010. Upon private audiometric examination on April 7, 2010, pure tone thresholds averaged 56 in the right ear and 58 in the left ear and speech recognition ability was 68 percent in the left ear and 72 percent in the left ear. 2. At a May 27, 2010, audiometric examination, conducted for VA, pure tone thresholds averaged 51.25 in the right ear and 50 in the left ear and speech recognition ability was 96 percent in both ears. 3. At a May 31, 2011 audiometric examination, conducted for VA, pure tone thresholds averaged 55 in the right ear and 56.25 in the left ear and speech recognition ability was 96 percent in both ears. CONCLUSIONS OF LAW 1. From March 24, 2010, through May 26, 2010, the criteria for an initial rating in excess of 20 percent for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.385, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC 6100) (2011). 2. From May 27, 2010, forward, the criteria for an increased initial (compensable) rating for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.385, 4.1, 4.3, 4.7, 4.85, 4.86, DC 6100 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, correspondence to the Veteran from the RO in April 2010 specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the Veteran and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claims; (2) informing the Veteran about the information and evidence VA would seek to provide; and (3) informing the Veteran about the information and evidence he was expected to provide. The United States Court of Appeals for Veterans Claims (Court) held that the 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, to specifically include that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the Veteran was provided with notice of this information in the April 2010 letter mentioned above. Second, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2011). The information and evidence associated with the claims file consist of his service treatment records (STRs), VA medical treatment records, private post-service medical treatment records, VA examinations, and statements from the Veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. The appellant has also been afforded VA audiometric evaluations in connection with this claim in May 2010 and May 2011. 38 C.F.R. § 3.159(c)(4) (2011). The examiners provided the numeric audiometric test results and speech discrimination scores using the Maryland CNC Test, and the VA examiners commented on the functional effects caused by the appellant's hearing disability. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). Thus, the Board finds that the above-noted examination reports are adequate for rating purposes. See also Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or medical opinion has been met. 38 C.F.R. § 3.159(c)(4) (2011). Finally, it is noted that the Veteran's representative has claimed that there was no need for additional audiometric examination in 2010 and that VA scheduled such for the purpose of denying the Veteran's claim. See the March 2010 Statement of Accredited Representative in Appeal Case. The Board observes that the Court has cautioned against seeking an additional medical opinion where favorable evidence in the record is unrefuted. The Court specifically indicated that it would not be permissible to undertake further development if the purpose was to obtain evidence against an appellant's claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Nonetheless, VA has discretion to determine when additional information is needed to adjudicate a claim. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (stating that VA has discretion to schedule a veteran for a medical examination where it deems an examination necessary to make a determination on the veteran's claim); Shoffner v. Principi, 16 Vet. App. 208, 213 (2002) (holding that VA has discretion to decide when additional development is necessary). Increased Ratings - In General Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2011); 38 C.F.R. Part 4 (2011). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole-recorded history, including service treatment records. 38 C.F.R. §§ 4.2, 4.41 (2011). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2011). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2011); DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995). Under the laws administered by VA, the Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 4.3 (2011). Where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. While the entire recorded history of a disability is to be reviewed by the rating specialist, the regulations do not give past medical report precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that the rule articulated in Francisco did not apply to the assignment of an initial rating for a disability following an initial award of service connection for that disability. Fenderson, 12 Vet. App. at 126; Francisco, 7 Vet. App. at 58. In such cases, consideration must be given to whether the veteran deserves a higher rating at any point during the pendency of the claim. If so, staged evaluations may be assigned. See also Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating Criteria Specific to Hearing Loss The Ratings Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. Table VIa is used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. 38 C.F.R. § 4.85(c) (2011). Pertinent case law provides that the assignment of disability ratings for hearing impairment is to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Notwithstanding the above, regulations codified at 38 C.F.R. § 4.86 provide for two provisions for evaluating veterans with certain patterns of hearing impairment that cannot always be accurately assessed under section 4.85, due to the fact that the speech discrimination test may not reflect the severity of impairment of communicative functioning which these veterans' experience. Under 38 C.F.R. § 4.86(a), when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, VA will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Also, when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, VA will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. See 38 C.F.R. § 4.86(b) (2010). However, based on the audiometric findings described below, neither of these provisions applies to the Veteran's situation. Background The Veteran filed a claim for VA compensation benefits on March 24, 2010. He asserted that he was exposed to acoustic trauma while performing his duties in the military which resulted in hearing loss and tinnitus. (Service connection is also in effect for tinnitus and a 10 percent rating has been assigned. That claim is not on appeal.) While his service treatment records (STRs) do not reflect actual diagnosis of hearing loss, his DD 214 shows that his military occupation was as a gunners mate indicating likely acoustic trauma. On April 7, 2010, an audiometric evaluation was conducted at a private facility. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 45 45 65 70 LEFT 35 40 55 65 70 Pure tone thresholds averaged 56 in the right ear and 58 in the left ear and speech recognition ability was 68 percent in the left ear and 72 percent in the left ear. Additional audiometric examination was conducted for VA purposes on May 27, 2010. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 35 45 60 65 LEFT 20 30 50 60 60 Pure tone thresholds averaged 51.25 in the right ear and 50 in the left ear and speech recognition ability was 96 percent in both ears. The examiner noted that the effect of the condition on the claimant's usual occupation and daily activity was moderate. On rating decision in June 2010, service connection was granted for bilateral hearing loss and for tinnitus. A 20 percent rating was assigned for bilateral sensorineural hearing loss, effective from the date of the Veteran's claim, March 24, 2010. The 20 percent rating was reduced to a noncompensable rating as of the date of exam showing improvement in the bilateral hearing loss - May 27, 2010. The Veteran filed a timely notice of disagreement with the RO's decision in August 2010. In order to reconcile the differences in the audiometric examinations (as summarized above), VA scheduled additional examination to determine the severity of the Veteran's bilateral hearing loss. The evaluation was conducted on May 31. 2011. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 50 60 75 LEFT 20 35 60 60 70 Pure tone thresholds averaged 55 in the right ear and 56.25 in the left ear and speech recognition ability was 96 percent in both ears. The examiner noted that the effect of the condition on the claimant's usual occupation and on daily activity was difficulty understanding speech in quiet and noise. Analysis The Board will consider whether an increased initial rating for bilateral hearing loss, rated as 20 percent disabling from March 24, 2010, through May 26, 2010, is warranted. Then, consideration will be given as to whether a compensable rating is warranted from May 27, 2010, forward. The audiological findings include private audiological examination report in April 2010 and VA audiological examination report dated in May 2010. Results of the March 2010 examination included pure tone threshold average loss of 56 in the right ear and 58 in the left ear and speech recognition ability of 68 percent in the left ear and 72 percent in the left ear. Under Table VI, the audiological findings correspond to level V hearing in the right and level V in the left ear. 38 C.F.R. § 4.85, Table VI (2011). These levels yield a 20 percent evaluation under Table VII. 38 C.F.R. § 4.85 (2011), DC 6100 (2011). Results of VA audiometric examination in May 2010 included pure tone threshold average loss of 51.25 in the right ear and 50 in the left ear and speech recognition ability of 96 percent in both ears. Under Table VI, the audiological findings correspond to level I hearing in the right and level I in the left ear. 38 C.F.R. § 4.85, Table VI (2011). These levels yield a noncompensable evaluation under Table VII. 38 C.F.R. § 4.85 (2011), DC 6100 (2011). Results of VA audiometric examination in May 2011 included pure tone threshold average loss of 55 in the right ear and 56.25 in the left ear and speech recognition ability of 96 percent in both ears. Under Table VI, the audiological findings correspond to level I hearing in the right and level I in the left ear. 38 C.F.R. § 4.85, Table VI (2011). These levels also yield a noncompensable evaluation under Table VII. 38 C.F.R. § 4.85 (2011), DC 6100 (2011). In light of the findings from the private April 2010 audiological examination that meet the criteria for a 20 percent rating under VA ratings schedule and the findings from the May 27, 2010 VA examination that meet the criteria for a noncompensable rating under the schedule, the Veteran clearly has not been shown to meet the criteria for an initial evaluation in excess of 20 percent for his bilateral hearing loss from the date of that he filed his claim (March 24, 2010) through the date of May 26, 2010. It was on VA examination on May 27, 2010, that improvement in the Veteran's hearing impairment was indicated. Moreover, follow-up VA examination conducted in May 31, 2011, corroborated the findings made at the 2010 exam. Simply put, a compensable rating is not warranted from May 27, 2010, forward. Based on the foregoing, the Board finds that the Veteran's bilateral hearing loss does not warrant an evaluation in excess of 20 percent any point from March 26, 2010, through May 26, 2010, and in excess of a noncompensable rating at any point from May 27, 2010 forward. As the preponderance of the evidence is against an increased evaluation, the benefit of the doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2011). Extraschedular Consideration 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. 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) (2011) (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. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the Veteran has reported difficulty hearing and communicating with others as a result of his bilateral hearing loss. The Board does acknowledge that the service-connected bilateral hearing loss interferes with communication ability. See Martinak, supra. The VA examinations for rating purposes test speech discrimination ability in an effort to consider impairment in the ability to understand speech. The Veteran's disability picture is contemplated by the rating schedule. Further, the record contains no objective evidence that the Veteran's service-connected bilateral hearing loss results in marked interference with earning capacity or employment beyond that interference contemplated by the assigned evaluation. In terms of employment, the May 2011 VA examination report notes a history of the Veteran working for a machine shop for 30 years. He was 78 years old at the time of the examination. As this evidence indicates that the Veteran is no longer employed, there can be no functional effects of his bilateral hearing loss on his occupational functioning. Additionally, the objective evidence does not reflect frequent periods of hospitalization due to this disability. Thus, the Board finds that 38 C.F.R. § 3.321 is inapplicable. See Thun, supra. ORDER Entitlement to an increased initial rating for bilateral hearing loss, rated as 20 percent disabling from March 24, 2010, through May 26, 2010, is denied. Entitlement to an increased initial (compensable) rating from May 27, 2010, forward, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs