Citation Nr: 1237777 Decision Date: 11/05/12 Archive Date: 11/09/12 DOCKET NO. 10-18 665 ) 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. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active military service from August 1969 to June 1977. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT The results of audiological evaluations indicate the Veteran has no worse than level II hearing impairment in his right ear and level III in his left ear. CONCLUSION OF LAW The criteria are not met for a compensable rating for his bilateral hearing loss. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.85, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was enacted in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom, him or VA. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist him in obtaining supporting evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board finds that all notification needed to make a decision as to this claim on appeal has been provided. In a March 2009 notice letter, the RO apprised the Veteran of the information and evidence needed to substantiate his claim for a higher rating for his bilateral hearing loss. He was told that the evidence must show this disability has increased in severity, meaning gotten worse. The letter provided him with the general criteria for assigning disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board also finds that the March 2009 notice letter satisfies the statutory and regulatory requirement that VA notify him of the evidence that must be obtained by him versus the evidence VA will obtain on his behalf. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In that letter, the RO notified him that VA was responsible for obtaining relevant records from any Federal agency and that VA would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer. Additionally, the notice letter asked that he submit medical evidence, opinions, statements, and treatment records regarding his hearing loss. Consequently, a remand for further notification of how to substantiate this claim is unnecessary. There is no indication that any additional action is needed to comply with the duty to assist him with this claim. His service treatment records (STRs) have been obtained and associated with the claims file for consideration, as have treatment records from the VA Medical Center (VAMC) in Kansas City, Missouri. Additionally, in April 2009 and July 2012, he was provided VA examinations in connection with this claim, the reports of which are of record. These examination reports contain sufficient evidence by which to evaluate his bilateral hearing loss in relation to the rating criteria. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination, it must provide an adequate one). Significantly, he has not alleged that there are any outstanding medical records probative of his claim that need to be obtained, and the most recent assessment of his hearing loss by way of VA compensation examination was very recently in July 2012. There is no suggestion his hearing loss has worsened in the just 3 months since that most recent evaluation, hence, no reason to again have him reexamined. The mere passage of time since does not, in and of itself, necessitate another examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Thus, VA has properly assisted him in developing and obtaining all relevant evidence concerning his claim. II. Analysis The Veteran asserts that his service-connected bilateral hearing loss is more disabling than currently rated, entitling him to a compensable rating, meaning a rating higher than just 0 percent. Disability evaluations are determined by comparing a veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2012). His entire medical history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation already has been established, VA must address the evidence concerning the state of the disability from one year before the claim for an increase was filed until VA makes a final decision on the claim. The U. S. Court of Appeals for Veterans Claims (Court/CAVC) has held that consideration of the appropriateness of a "staged" rating is required. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). This would compensate him for any variance in the severity of his disability since one year prior to the filing of his claim for increase. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). He filed this claim for increase in March 2009, so the relevant temporal focus is since March 2008. His service-connected bilateral hearing loss has been evaluated as noncompensably (zero percent) disabling. The assigned evaluation for hearing loss is determined by mechanically, so nondiscretionarily, applying the rating criteria to certified test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examinations. Evaluations of hearing impairment range from noncompensable (0 percent) to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. The rating criteria establish eleven auditory acuity levels designated from I for essentially normal hearing acuity to XI for profound deafness. As set forth in the regulations, Tables VI, VIa, and VII are used to calculate the rating to be assigned. See 38 C.F.R. § 4.85 (Diagnostic Code 6100) (2012). Additionally, the regulations allow for evaluating exceptional patterns of hearing impairment. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a) (2012). Also when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). In light of the audiological examination results of record, however, these provisions do not apply in the Veteran's case. He was provided a VA audiological examination in April 2009 in response to his March 2009 claim for a higher rating for his bilateral hearing loss. The examiner diagnosed bilateral sensorineural hearing loss. The examination results documented a puretone threshold average of 55 for the right ear and 58.75 for the left ear. The Maryland CNC speech recognition score was 98 percent for each ear. Based on those results with the utilization of Table VI, the Veteran had level I hearing impairment in his right ear and level II hearing impairment in his left ear. Applying the results to Table VII, a noncompensable disability rating is warranted for bilateral hearing loss based on those April 2009 audiological examination results. See 38 C.F.R. § 4.85 (Diagnostic Code 6100). He more recently had another VA audiological examination in July 2012 to reassess the severity of his bilateral hearing loss, especially since in the interim he had alleged that it had worsened and it had been more than 3 years since his prior examination for compensation purposes. 38 C.F.R. § 3.327(a); see also Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (wherein the Court held that, when a Veteran claims that a disability is worse than when originally rated (or last examined by VA), and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination). See also Caffrey v. Brown, 6 Vet. App. 377, 381(1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); see, too, Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence adequately addressing the level of impairment of the disability since the previous examination). See, as well, VAOPGCPREC 11-95 (April 7, 1995) and Green v. Derwinski, 1 Vet. App. 121 (1991). A diagnosis of bilateral sensorineural hearing loss was again provided after this more recent evaluation. Examination results documented a puretone threshold average of 53.75 for the right ear and 61.25 for the left ear. The Maryland CNC speech recognition score was 90 percent for the right ear and 88 percent for the left ear. Based on these results with the utilization of Table VI, the Veteran has level II hearing impairment in his right ear and level III hearing impairment in his left ear. Applying these results to Table VII, a noncompensable disability rating is still warranted for his bilateral hearing loss based on this July 2012 VA examination. Given the puretone threshold averages and speech recognition scores, his hearing impairment appeared to have worsened since his prior VA examination. However, the rating criteria simply do not call for a compensable rating for level III hearing impairment in one ear and level II hearing impairment in the other ear, even acknowledging this worsening of his hearing loss. See 38 C.F.R. § 4.85 (Diagnostic Code 6100). His hearing loss still has not progressed to the point that he is entitled to a compensable rating. During the pendency of this appeal, he received treatment for his hearing loss at the Kansas City VAMC, primarily for the fitting of hearing aids. But in March 2009, his speech recognition scores were similar to the scores during his contemporaneous April 2009 VA compensation examination as his speech recognition was 96 percent in his right ear and 100 percent in his left ear. He also submitted a private audiogram dated in May 2010. The examination is invalid for VA rating purposes, however, because the speech discrimination test was expressly stated as "NU #6" instead of the required Maryland CNC test. See 38 C.F.R. § 4.85(a) (an examination for hearing impairment for VA purposes . . . must include a controlled speech discrimination test (Maryland CNC) . . .) (emphasis added). Cf. Savage v. Shinseki, 24 Vet App. 259 (2011) (VA may not reject a private audiological evaluation for failure to apply the Maryland CNC Test without first making a diligent effort to determine whether it was applied). In any case, as mentioned, he since has been provided another VA audiological examination in July 2012 to reassess the extent of his hearing impairment. And for the reasons and bases already discussed, while this more recent evaluation showed greater hearing loss, it was not greater to the point that he now deserves a higher (compensable) rating for this disability. In consideration of the objective audiometric examination results that have been made a part of the record from the time period one year before the claim for an increase was filed, the Veteran experiences no more than noncompensably disabling bilateral hearing loss. The Board has considered his submitted statements by which he contends that a compensable rating is warranted. Despite the seemingly credible statements, the Board is bound by the regulations that require a mechanical application of the rating criteria. Therefore, a rating of zero percent is appropriate and a compensable rating is not warranted at any time during the claim process. Notably, in September 2012, his representative acknowledged the hearing loss was properly rated as zero-percent disabling. The Veteran and his representative also contend, however, that the VA audiological examination process itself is inadequate because it takes place in a sound-proof booth, so is not equivalent to or representative of the sounds and noises experienced under the ordinary conditions of life. See, e.g., 38 C.F.R. § 4.10 (2012). In a sense, the contention is that the Veteran's service-connected bilateral hearing loss is more disabling than the audiometric testing results and speech discrimination scores reveal because he has to endure background noise and other impediments in his daily life that are not encapsulated by the hearing room environment that occurs when his hearing is tested for VA compensation purposes. But the regulations specifically set forth the manner in which a Veteran's hearing impairment is to be evaluated. Sections 4.85 and 4.86 detail the specific criteria for disability ratings as described above. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from hearing loss in civil occupations. 38 C.F.R. § 4.1. VA has determined that the audiometric and speech discrimination testing is the appropriate method for evaluating hearing impairment. See 64 Fed. Reg. 25202-210 (May 11, 1999); 52 Fed. Reg. 44117-122 (Nov. 18, 1987). The Court has held that the disability rating for hearing loss is determined by a mechanical application of the rating schedule. Lendenmann, 3 Vet. App. at 349. Thus, the contentions amount to a call for an evaluation of the Veteran's hearing loss under alternative criteria. However, the Board is bound by the regulations and must evaluate the Veteran's disability as set forth therein. Therefore, because the objective medical evidence demonstrates that a noncompensable rating is appropriate, a higher rating for bilateral hearing loss is not warranted at any time during the rating period on appeal. The above determination is based upon consideration of applicable rating provisions. Both VA examination reports describe the effects of the Veteran's hearing impairment on his daily life. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). It was noted by the examiners that he has difficulty understanding speech, particularly when it is noisy. Such effects do not take his case outside the norm as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2012). The symptoms of his disability have been accurately reflected by the schedular criteria. Without sufficient evidence reflecting that his disability picture is not contemplated by the rating schedule, referral for a determination of whether his disability picture requires the assignment of an extra-schedular rating is unwarranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). For the foregoing reasons, the Board finds that the claim for a compensable rating for bilateral hearing loss must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, this doctrine is inapplicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER The claim for a compensable rating for the bilateral hearing loss is denied. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs