Citation Nr: 1234167 Decision Date: 10/01/12 Archive Date: 10/11/12 DOCKET NO. 10-16 042 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a compensable rating for bilateral hearing loss disability. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD C. J. Houbeck, Associate Counsel INTRODUCTION The Veteran had active service from February 1958 to June 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Louis, Missouri. FINDINGS OF FACT 1. Audiometric examinations correspond to no greater than a level II hearing loss for the right ear and a level II hearing loss for the left ear. 2. The Veteran's hearing loss disability does not present an exceptional or unusual disability picture. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 4.1, 4.85, Diagnostic Code (DC) 6100, 4.86 (2011). 2. Application of the extraschedular rating provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters in June 2009 and September 2009 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2011); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letters also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced state service organization and has submitted argument in support of his claim. These arguments have referenced the applicable law and regulations necessary for granting entitlement to an increased rating. Specifically, the Veteran in multiple statements has pointed to pure tone hearing levels and speech discrimination scores as evidence that a compensable rating is warranted. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2011). The RO provided the Veteran appropriate VA or QTC examinations in July 2009 and May 2012. The VA examination reports are thorough and supported by VA outpatient treatment records. The examinations discussed the clinical findings and the Veteran's reported history as necessary to rate the disability under the applicable rating criteria. Specifically, the examinations provide sufficient information to assess the current severity of the Veteran's service-connected bilateral hearing loss. Based on the examinations and the fact there is no rule as to how current an examination must be, the Board concludes the examinations in this case are adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board recognizes that in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2009). The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow deficient, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. Neither the Veteran nor his accredited representative has asserted that there is any deficiency in his VA examinations. Furthermore, the Board notes that the May 2012 VA examination report discussed the Veteran's claim that his current symptoms were difficulty hearing the television, radio, and conversations. Thus, as contemplated by Martinak and directed by 38 C.F.R. § 4.10, the May 2008 examiner discussed the functional effects of the Veteran's hearing problems in the examination report. Moreover, the Veteran reported similar problems in other evidence of record, for example during VA treatment in August 2009 and QTC examination in July 2009. Therefore, the Board finds a remand for a VA examination to further document the functional effects of the Veteran's hearing problems would serve no useful purpose. Sabonis, 6 Vet. App. at 430. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Increased Rating The Veteran alleges that his current bilateral hearing loss warrants a compensable rating. The evaluation assigned for a service-connected disability is established by comparing the manifestations shown with the criteria in the VA's Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. 38 C.F.R. § 4.85. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. Id. Where there is an exceptional pattern of hearing impairment, a rating based on pure tone thresholds alone may be assigned. 38 C.F.R. § 4.86 (a) & (b). 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 (1992). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, a June 2009 VA treatment record indicated that the Veteran's hearing loss did not result in significant functional or cognitive impairment evidenced by deficiencies in activities of daily living. The Veteran was afforded a QTC audio examination in July 2009. At that time, the Veteran reported difficulty hearing, especially in situations involving background noise. The results of the QTC audiological test are as follows, with pure tone thresholds recorded in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 40 75 80 LEFT 40 45 60 75 80 Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 96 percent in the right ear and 92 percent in the left ear. The average of the pure tones between 1000-4000 Hz was 57.5 decibels for the right ear and 65 decibels for the left ear. Using Table VI in 38 C.F.R. § 4.85, the Veteran received a numeric designation of II for the right ear and II for the left ear. Such a degree of hearing loss warrants a noncompensable rating under Table VII. The Board notes that it also considered the alternative rating scheme for exceptional patterns of hearing impairment and found it inapplicable here. See 38 C.F.R. § 4.86 (a) & (b). An August 2009 VA treatment record included reports by the Veteran that he had difficulty understanding conversations with family, friends, and neighbors, and that he was forced to keep the television at a volume higher than was comfortable for other people. The record also indicated that speech reception thresholds were 20 decibels in both the right and left ears, with speech discrimination scores of 92 percent for the right ear and 88 percent for the left ear. The record noted, however, that the speech recognition scores were achieved using the NU-6 word list. As noted above, for rating purposes speech discrimination testing must use the Maryland CNC test, as required pursuant to 38 C.F.R. § 4.85. The word list requirement in the regulation is very specific and differs from other word lists used to test hearing impairment. As such, the foregoing may not be used to evaluate the Veteran's entitlement to a compensable rating for his hearing loss. In support of his claim for increased rating, in April 2010 the Veteran submitted an undated private audiogram. The results of the private audiological test are as follows, with pure tone thresholds recorded in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 75 60 75 90 90 LEFT 85 65 85 95 95 The average of the pure tones between 1000-4000 Hz was 78.75 decibels for the right ear and 85 decibels for the left ear. The audiogram listed word recognition percentages as being 84 percent in the right ear and 80 percent in the left ear. In that regard, the Board notes that the audiological test did not indicate the specific controlled speech discrimination test used for the examination. Specifically, it is unclear whether the speech discrimination test was performed using the Maryland CNC test, as required pursuant to 38 C.F.R. § 4.85. As noted above, the word list requirement in the regulation is very specific and differs from other word lists used to test hearing impairment. In this instance, it is unclear from the private report what test was used. The Board has considered this oversight in light of the Court's holding in Savage v. Shinseki, 24 Vet. App. 259 (2011) that held in certain circumstances VA has an obligation to seek clarification of a private medical examination report. In this case, the Board finds that such clarification is unnecessary. In this case, the Board observes, that the Veteran's audiograms in the year prior to this undated (though presumably from April 2010) private audiogram and those slightly over a year after the audiogram universally show hearing acuity that was significantly better than that demonstrated in the April 2010 private audiogram. For example, pure tone thresholds at 500 Hz were at least 40 decibels more severe in the April 2010 audiogram than found in any other audiogram before or since. At 2000 Hz, the pure tone thresholds were at least 25 decibels more severe in the April 2010 audiogram than any prior or subsequent audiogram. Indeed, in each ear at all frequencies the April 2010 audiogram showed puretone thresholds that were at least 10 decibels worse than in any audiogram taken either before or after. The Board considers such a disparity extremely significant in light of the Veteran's lay statements of record. Specifically, as will be discussed below, in July 2011 the Veteran submitted evidence based on his belief that his hearing had decreased since the previous evidence submitted (i.e. the April 2010 audiogram). In that regard, the Veteran as a layperson may not be competent to diagnose a hearing loss disability or the rating to be assigned to such a disability, as these conclusions are based on the mechanical application of rating criteria to the results of specified audiometric studies. However, the Veteran is competent to report physically observed symptomatology, such as decreased hearing acuity. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Unlike the facts in Savage, this is not a case in which the Veteran argues that his hearing acuity has undergone alternating periods of improving and worsening. Instead, the Veteran consistently has reported that his hearing acuity has continued to deteriorate during the appellate time period. The April 2010 audiogram findings are wholly at odds with such an assertion in light of subsequent audiograms, discussed below. While the April 2010 audiogram shows significantly worsened hearing acuity compared to prior audiograms, it also shows significantly worse hearing acuity compared to subsequent audiograms. Thus, this finding is at odds with both the lay and medical evidence of record. In light of the lay and medical evidence of record, therefore, the Board concludes that the April 2010 private audiogram pure tone findings are not an accurate reflection of the Veteran's hearing acuity during the appellate time period and, as such, a remand to request clarification as to the specific word list used during such testing would serve no useful purpose. See Sabonis, 6 Vet. App. at 430. The Veteran submitted another undated audiogram in July 2011. In a contemporaneously submitted statement, the Veteran indicated that he was submitting the audiogram as evidence that his "hearing has decreased since the previous submittal of evidence." The results of the undated audiogram are as follows, with pure tone thresholds recorded in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 25 70 80 LEFT 35 30 25 65 75 The provided record did not include speech recognition testing results. The average of the pure tones between 1000-4000 Hz was 50 decibels for the right ear and 48.75 decibels for the left ear. Again, for rating purposes speech discrimination testing must use the Maryland CNC test, as required pursuant to 38 C.F.R. § 4.85. The word list requirement in the regulation is very specific and differs from other word lists used to test hearing impairment. As such, the foregoing may not be used to evaluate the Veteran's entitlement to a compensable rating for his hearing loss. The Veteran was afforded a VA audio examination in May 2012. At that time, the Veteran reported that his hearing loss made it difficult to understand television, radio, or conversations. The results of the VA audiological test are as follows, with pure tone thresholds recorded in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 35 30 25 75 80 LEFT 30 25 25 70 75 Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 96 percent in the right ear and in the left ear. The average of the pure tones between 1000-4000 Hz was 52 decibels for the right ear and 49 decibels for the left ear. Using Table VI in 38 C.F.R. § 4.85, the Veteran received a numeric designation of I for the right ear and I for the left ear. Such a degree of hearing loss warrants a noncompensable rating under Table VII. The Board notes that it also considered the alternative rating scheme for exceptional patterns of hearing impairment and found it inapplicable here. See 38 C.F.R. § 4.86 (a) & (b). The Board has considered the lay statements provided by the Veteran. As was indicated above, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. Here, there is no evidence of a change in the Veteran's hearing since the May 2012 examination and, therefore, nothing to suggest that an additional VA examination would be beneficial. The probative medical evidence does not show the Veteran's hearing loss has ever reached a compensable level during the appellate time period. Staged ratings, therefore, are inapplicable here. See Hart, 21 Vet. App. at 505. Considering the results of the VA examination, entitlement to a compensable rating for bilateral hearing loss is denied. Extraschedular Considerations The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2011). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto 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 to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected hearing loss disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's hearing loss disability with the established criteria shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. Specifically, the Veteran reports difficulty hearing the television, radio, and understanding speech, especially in areas with background noise. The Board notes that the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability. In support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86. In this regard, the rating criteria for hearing loss were last revised, effective June 10, 1999. See 64 Fed. Reg. 25206 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17295 (April 12, 1994). Accordingly, the Board finds that functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria. Therefore, the Veteran's struggle to comprehend verbal speech and conversations is a factor contemplated in the regulations and rating criteria as defined. Accordingly, the Board determines that the Veteran's complaints of hearing difficulty have been considered under the numerical criteria set forth in the rating schedule. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. (CONTINUNED ON NEXT PAGE) ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs