Citation Nr: 1237106	
Decision Date: 10/25/12    Archive Date: 11/09/12

DOCKET NO.  08-14 624	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUE

Entitlement to an extraschedular evaluation for the service-connected bilateral hearing loss disability.


REPRESENTATION

Appellant represented by:	Massachusetts Department of Veterans Services


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C.A. Skow, Counsel

INTRODUCTION

The Veteran had active service from January 1946 to July 1947.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts.

In November 2010, the Veteran testified at a Travel Board hearing at the RO. A transcript of the hearing is associated with the claims file.  It is noted that the Veterans Law Judge conducting the hearing retired.  VA notified the Veteran and afforded him the opportunity to appear at another hearing, which he declined in October 2012.

In November 2010, the Board remanded the issue of entitlement to a compensable evaluation for bilateral hearing loss disability for additional development.

In December 2011, the Board denied the claim for a compensable evaluation for bilateral hearing loss disability and granted a claim for referral of the case to the Director of Compensation and Pension Services of the matter of entitlement to an extraschedular evaluation for the service-connected bilateral hearing loss.

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.

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).



FINDING OF FACT

The Veteran's the hearing loss symptoms fit appropriately with the criteria found in the relevant Diagnostic Code for that disability; he has not reported interference with employment secondary to his service-connected hearing loss disability; and the evidence does not establish that he has experienced hospitalizations or other severe or unusual impairment due to his service-connected hearing loss.


CONCLUSION OF LAW

Entitlement to an extraschedular evaluation for service-connected bilateral hearing loss disability is not established.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b), 4.85, 4.86, Diagnostic Code 6100 (2011).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2011), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.

As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008.

The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).

The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Pelegrini at 121.  Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim.  Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006).

Here, the Veteran's claim arises from his disagreement with the initial disability rating following the grant of service connection for hearing loss disability.  It has been held that once service connection is granted, the claim is substantiated and additional notice is not required.  Thus any defect in the notice provided to the Veteran is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

Nevertheless, by letter dated in May 2006 (prior to the grant of service connection), the Veteran was notified of the evidence necessary to substantiate his claims; the information that he needed to provide; and the information or evidence that VA would attempt to obtain.  Additionally, in December 2011, VA supplemented this notice with specific notice of the requirements for establishes entitlement to an extraschedular evaluation.  Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied.

VA further has a duty to assist.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  That is, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d).  All relevant records have been obtained and associated the claims file.

VA provided the Veteran a hearing in September 2010.  The Veteran testified and a written transcript is associated with the claims file.  However, the Veterans Law Judge hearing that testimony retired subsequent to the hearing and most recent remand.  In October 2012, the Veteran declined the opportunity to have a second hearing before another VLJ who would then decide his case.

It is noted that the Board referred this issue in a December 2011 remanded for consideration of entitlement to an extraschedular evaluation by the Director of Compensation and Pension Services.  The requested actions were accomplished.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).

II.  Entitlement to an Extraschedular Evaluation

The Veteran rated at the noncompensable disability level for bilateral hearing loss disability and at the 10 percent disability level for tinnitus.  See 38 C.F.R. § 4.85, Diagnostic Codes 6100, 6260.

Ratings shall be based as far as practicable, upon the average impairments of earning capacity.  To accord justice to the exceptional case where the schedular standards are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of criteria set forth in this paragraph an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.  The governing norm in these exceptional cases is 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 as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1) (2011).

Generally, it is sufficient to evaluate a disability using either the corresponding or analogous diagnostic codes contained in the rating schedule.  See 38 C.F.R. §§ 4.20, 4.27 (2011).  "However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating."  Thun v. Peake, 22 Vet.App. 111, 114 (2008); cf. Martinak v. Nicholson, 21 Vet.App. 447, 455-56 (2007) (recognizing that because an extraschedular rating for hearing loss may be appropriate, VA hearing examiners should comment on any functional effects of a hearing disability).  When either a claimant or the evidence of record suggests that a schedular rating may be inadequate, the Board must specifically adjudicate the issue of whether referral for an extraschedular rating is warranted.  See Colayong v. West, 12 Vet.App. 524, 536 (1999).  Factors that may indicate that an extraschedular rating is warranted include "marked interference with employment or frequent periods of hospitalization" beyond the contemplation of the rating schedule.  38 C.F.R. § 3.321(b)(1) (2011).

In Thun, the Court concluded that "determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry."  Thun, 22 Vet.App. at 115.  First, the Board or the RO must determine whether the evidence presents "such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate."  Id.  To do this, the Board or the RO must determine whether the criteria found in the rating schedule reasonably describe the claimant's disability level and symptomatology.  If so, the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is, therefore, adequate, and no referral is required.  Id.  However, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, the RO and Board move to the second prong of the analysis.  Id.

Under the second prong, the RO and Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization."  Id.  In sum, if the Board determines that the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, the case must be referred for completion of the third step-to determine whether, to accord justice, an extraschedular rating must be assigned.  Id.

In this case, statements and testimony from the Veteran reflect that he has difficulty hearing and understanding voices in crowds; and that he misses a lot of words with his hearing aids.  The Veteran testified that he must use an amplification device when he watches television and that his hearing aids do not provide him with adequate hearing acuity.  He further suggested that he had difficulty hearing low frequencies in the past, and now had trouble with high frequencies-comparing ladies' voices to nails on a chalkboard.  The Veteran indicated that he was without hearing for several months in his left ear and that he has to use his right ear to take phone calls.  He noted that he must ask people to repeat themselves due to poor hearing.

A December 2010 VA audiological evaluation showed an average pure tone decibel loss of 50 decibels in the left ear and 49 in the right ear, with 84 percent and 88 percent speech discrimination in the left and right ears, respectively.  The examiner stated that the effect of the Veterans disability on occupation was significant and explained that hearing without binaural hearing aids and without face-to-face communication can be difficult.

In December 2011, the Board denied entitlement to a compensable evaluation for bilateral hearing loss disability.  At that time, having determined that the three-step inquiry set out in Thun had been satisfied, the Board referred the matter of entitlement to an extraschedular evaluation for hearing loss disability to the Director of Compensation and Pension (C&P) Services.

Subsequently, C&P Services determined that the Veteran's hearing disability did not meet the criteria under 38 C.F.R. § 3.321(b) for an extraschedular disability evaluation, noting that the evidence did not show an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render the current rating schedular criteria inadequate.

The Board has carefully considered the evidence of record and finds that the preponderance of the evidence is against the assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b) for service-connected bilateral hearing loss disability.  As an initial matter, the Board believes that the Veteran's complaints of diminished hearing acuity and difficulty hearing in crowds are contemplated by the schedule's consideration of both pure tone thresholds and speech discrimination.  See 38 C.F.R. § 4.85.  Furthermore, the rating schedule allows for rating exceptional patterns of hearing impairment-but the Veteran does not meet this criteria as explained in the Board's December 2011 decision.  See 38 C.F.R. § 4.86.  The rating schedule reasonably describes the Veteran's hearing disability and his symptomatology.

Additionally, neither the lay nor the medical evidence shows marked interference with employment.  While report of VA audiological examination dated in May 2010 found that the Veteran's hearing loss resulted in significant occupational effects-the audiologist clarified that the Veteran "hearing without his binaural hearing aids and without face-to-face communication can be difficult."  This statement suggests inference with employment but not "marked interference."  Moreover, there is no indication that the Veteran would be precluded from using his hearing aids in a work environment.  Also, although the Veteran reports increased difficulty hearing in crowds, neither the lay nor the medical evidence reflects that this would cause marked interference with work.  The evidence further shows that he listens to the television with amplification help and uses the telephone.

The evidence does not show frequent periods of hospitalization.  The Board acknowledges that the nature of hearing loss disability is not one that generally involves frequent periods of hospitalization-and, here, there are no periods of hospitalization.

Lastly, the Board observes that the Veteran has not presented any specific argument suggesting that his hearing loss disability presents an unusual or exceptional disability pattern that would warrant the assignment of an extraschedular evaluation.

Thus, in summary, the Board finds that there is no probative evidence that as a result of his service-connected defective hearing he has experienced any loss of income or career opportunities commensurate with a "marked interference with employment."  The Veteran has produced no evidence indicating any interference with his employment other than by his anecdotal accounts of difficulty understanding female voices, voices in crowds, and his need for hearing amplification.  He does not claim he has lost or been denied employment as a result of his hearing impairment and there is no evidence he has experienced any adverse economic consequences.

The Board finds there is no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization related to this service-connected disorder that would take the Veteran's case outside the norm so as to warrant an extraschedular rating.

Accordingly, the claim is denied.  There is no doubt to resolve.  Gilbert, supra.




ORDER

Entitlement to an extraschedular evaluation for the service-connected bilateral hearing loss is denied.



____________________________________________
KELLI A. KORDICH 
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs