Citation Nr: 1219084 Decision Date: 05/30/12 Archive Date: 06/07/12 DOCKET NO. 09-27 030 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to a compensable initial rating for the Veteran's service-connected bilateral hearing loss. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Peter J. Meadows, Esq. ATTORNEY FOR THE BOARD B. Diliberto, Associate Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active service from March 1941 to January 1947 and from September 1950 to September 1951. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, that denied the benefit sought on appeal. The Veteran appealed that decision and the case was referred to the Board for appellate review. The Veteran's claim was previously before the Board in April 2011, on which occasion the Board remanded the claim for further development. The requested development on the issue of entitlement to a compensable initial rating for bilateral hearing loss has been completed and no further action is necessary to comply with the Board's remand directives on that issue. Stegall v. West, 11 Vet. App. 268 (1998). However, the issue of entitlement to a total disability rating based on individual unemployability (TDIU) required further development. Accordingly, that issue is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT Audiometric testing has not shown that the Veteran has hearing acuity worse than Level III in the left ear and Level III in the right ear. CONCLUSION OF LAW The criteria for a compensable initial rating for the Veteran's service-connected bilateral 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, 4.10, 4.85, Diagnostic Code 6100 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has claimed entitlement to a compensable initial rating for his service-connected bilateral hearing loss. Essentially, the Veteran contends that the evaluation assigned for that condition does not accurately reflect its severity. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected condition adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155, 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ranges. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinksi, 1 Vet. App. 589 (1991). If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required by that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Rating evaluations for service-connected hearing loss range from noncompensable to 100 percent. These evaluations are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 hertz (Hz). To evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels, from Level I for essentially normal acuity, through Level XI for profound deafness. 38 C.F.R. §§ 4.14, 4.85, Diagnostic Code 6100 (2011). Hearing tests are conducted without hearing aids, but the impact thereof is contemplated in the schedular evaluations. See 38 C.F.R. § 4.85. The results of the above-described testing are charted on Table VI, VIa and VII. See 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.86(a), when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear is to be evaluated separated. Likewise, when the puretone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz, the rating specialist will also determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86(b). These provisions are not applicable in this case so as to provide a higher rating. The Court has noted that the assignment of disability ratings for hearing impairment are basically arrived at by a mechanical application of the numeric designations assigned after audiological evaluations are rendered. See Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 345 (1992). However, the Court has admonished that audiologists must also describe the effects of the hearing loss on occupational functioning and daily activities, so that it can be determined whether or not an extraschedular evaluation may be assigned. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). In Martinak, the Court specifically noted that unlike the schedular rating criteria, the extraschedular provisions do not rely exclusively on objective results to determine entitlement. The Veteran was first granted entitlement to service connection for bilateral hearing loss in a rating decision issued in June 2007. At that time a noncompensable rating was assigned effective from April 12, 2006. The Veteran submitted a Notice of Disagreement (NOD) in June 2008. The RO issued a Statement of the Case (SOC) in June 2009 and the Veteran filed a Substantive Appeal (VA Form 9) in July 2009. The Veteran's claim first came before the Board in April 2011, at which time it was remanded for further development. The requested development on the issue of entitlement to a compensable initial rating for bilateral hearing loss has been completed and no further action is necessary to comply with the Board's remand directives on that issue. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, that issue is once again before the Board. The relevant evidence of record includes private treatment records, VA treatment records, VA examination reports and written statements from the Veteran. VA treatment records from May 2006 indicate that the Veteran had been using hearing aids since March 1999. Decreased hearing was noted at 2kHz, but no other significant changes were noted. The Veteran had good word understanding. Audiometric testing was provided. Air conduction studies revealed that the Veteran's right ear puretone thresholds were 20, 60, 70 and 75, for an average of 57 decibels; the Veteran's left ear puretone thresholds were 20, 60, 70 and 80, for an average of 58 decibels. Puretone averages were 35 for the right ear and 33 for the left ear. Inter-test consistency was good. Speech audiometry was performed, revealed MCL at 65 for the right ear and 70 for the left ear; UCL was 95 for the right ear and 100 for the left ear. In January 2007 the Veteran was afforded a VA examination in support of his claim. During that examination the Veteran reported a history of military noise exposure. Audiometric testing revealed that the Veteran's left ear puretone thresholds were 20, 60, 70 and 80, for an average of 58 decibels, and that his speech discrimination score for that ear was 88 percent. The Veteran's right ear puretone thresholds were 30, 65, 70 and 80, for an average of 61 decibels. His speech discrimination score for that ear was 84 percent. The examiner diagnosed the Veteran with mild sloping to severe sensorineural hearing loss bilaterally. When combined on Table VI these numbers produce Level III hearing for the left ear and Level III hearing for the right ear. When these hearing designations are applied to Table VII the result is a noncompensable disability rating. The Veteran was afforded an additional VA examination in February 2009. During that examination the Veteran reported functional impairment due to hearing loss affecting daily recreational activities and interpersonal communication. Audiometric testing revealed that the Veteran's left ear puretone thresholds were 30, 65, 70 and 80, for an average of 61 decibels, and that his speech discrimination score for that ear was 100 percent. The Veteran's right each puretone thresholds were 30, 65, 70 and 75, for an average of 60 decibels. His speech discrimination score for that ear was 96 percent. When combined on Table VI these numbers produce Level II hearing for the left ear and Level II hearing for the right ear. When these hearing designations are applied to Table VII the result is a noncompensable disability rating. Private treatment records from July 2009 indicate that the Veteran underwent audiometric testing. However, these records do not indicate that evaluating provider used the Maryland CNC speech recognition test as required by 38 C.F.R. § 4.85(a). Thus the results of those records cannot be evaluated under the VA rating criteria. VA treatment records from December 2009 indicate continued treatment for bilateral hearing loss. The Veteran reported no significant change in hearing acuity since February 2009. Testing revealed mild sloping to severe sensorineural hearing loss. Speech recognition was good. The Veteran's most recent VA examination was performed in June 2011. Audiometric testing revealed that the Veteran's left ear puretone thresholds were 35, 65, 75 and 80, for an average of 64 decibels, and that his speech discrimination score for that ear was 96 percent. The Veteran's right each puretone thresholds were 45, 70, 75 and 80, for an average of 68 decibels. His speech discrimination score for that ear was 100 percent. When combined on Table VI these numbers produce Level II hearing for the left ear and Level II hearing for the right ear. When these hearing designations are applied to Table VII the result is a noncompensable disability rating. The examiner stated that the Veteran's hearing loss had significant effects on occupational activities, but stated that in and of themselves, the Veteran's hearing problems would not preclude him from being gainfully employed. As each of the Veteran's audiometric evaluations indicate a noncompensable disability rating for his hearing loss as noted above, the Board finds that there is no schedular basis on which to grant a compensable rating. See generally Lendenmann v. Principi, 3 Vet. App. 345, 349 (1993) (the assignment of a disability rating for hearing loss is a "mechanical" process of comparing the audiometric evaluation to the numeric designations in the rating schedule). The Board has considered whether an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The record does not show anything unique or unusual about the Veteran's bilateral hearing loss. While the condition undoubtedly causes some impairment, no symptoms have been described that would render the schedular criteria inadequate. The Veteran's main symptom is difficulty hearing in various situations, which is contemplated in the rating assigned. Therefore, assignment of an extraschedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Thun v. Peake, 22 Vet. App. 111 (2008). In sum, the lay and medical evidence is against an initial compensable rating for the Veteran's bilateral hearing loss for any time during the appeal period. To the extent that the Veteran argues entitlement to a compensable rating, the Board places greater probative value on the clinical findings and opinions by VA examiners who have greater expertise and training than the Veteran in evaluating the disability at issue. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001). Duty to Assist The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). The notification obligation in this case was met by way of letters from the RO to the Veteran dated in July 2006, January 2009, March 2009, April 2009 and May 2011. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances of this case. In addition, the Veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal and have not argued that any errors or deficiencies in the accomplishment of the duty to notify or the duty to assist have prejudiced the Veteran in the adjudication of his appeal. The Veteran has been afforded several VA examinations during the pendency of the appeal. The reports from those examinations reflect that the examiners reviewed the Veteran's medical records, recorded his current complaints, conducted appropriate physical examinations and rendered diagnoses and opinions consistent with the remainder of the evidence of record and pertinent to the rating criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Additional examination is unnecessary, and the Board finds that the RO has satisfied the duty to notify and the duty to assist. ORDER Entitlement to a compensable initial rating for the Veteran's service-connected bilateral hearing loss is denied. REMAND The Veteran also has a pending claim for entitlement to a total disability rating based on individual unemployability (TDIU). In its April 2011 remand the Board determined that, based on Rice v. Shinseki, 22 Vet. App. 124 (1996), the issue of entitlement to a total disability rating based on individual unemployability had been raised. Accordingly, that issue was remanded for development by the RO/AMC. Unfortunately, a remand is again required. Although the Board sincerely regrets the additional delay, the United States Court of Appeals for Veterans Claims (Court) has held that the Board is obligated by law to ensure that the RO complies with its directives; and where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). In the April 2011 remand the Board instructed the RO/AMC to obtain an opinion from a VA examination as to whether it is at least as likely as not that the Veteran's service-connected disabilities preclude his ability to obtain and maintain substantially gainful employment. The examinations obtained contain separate opinions pertaining to the Veteran's bilateral hearing loss and posttraumatic stress disorder and completely fail to consider the Veteran's service-connected concussion or whether or not a combination of his service-connected disabilities may preclude employment. On remand, the RO/AMC should obtain an opinion from a VA examiner (one examiner) that clearly states whether it is at least as likely as not that the Veteran is unable to obtain or maintain substantially gainful employment solely as a result of the combination of his service-connected disabilities. The examiner must indicate having considered all of the Veteran's service-connected disabilities, including bilateral hearing loss, posttraumatic stress disorder and concussion. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.) 1. The RO/AMC should contact the Phoenix VA Medical Center and request all medical records pertaining to the Veteran from December 2009 to the present. If the Veteran indicates that he has received any additional treatment or evaluations, the RO/AMC should obtain and associate those records with the claims file. 2. Thereafter, the RO/AMC should schedule the Veteran for any appropriate VA examination to determine the effect of all service-connected disabilities on his employability. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file, and indicate having done so. Following review and examination, the examiner is requested to state whether it is at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran is unable to obtain or maintain substantially gainful employment solely as a result of the combination of his service-connected disabilities. In this regard, the examiner must specifically take into consideration all of the Veteran's service-connected disabilities and note having done so. In forming an opinion the examiner must consider the Veteran's education, experience, and occupational background in determining whether he is unable to secure or maintain gainful employment in light of his service-connected disabilities (standing alone). The examiner must not consider the Veteran's age or any limitations from nonservice-connected disabilities. The examination report must include a complete rationale for all opinions and conclusions expressed. 3. When all of the requested development above has been completed the case should be reviewed based on any additional evidence submitted. If the benefits sought are not granted, the Veteran should be furnished a Supplemental Statement of the Case (SSOC), and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs