Citation Nr: 1207937	
Decision Date: 03/01/12    Archive Date: 03/16/12	

DOCKET NO.  05-28 557	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia


THE ISSUES

1.  Entitlement to a rating in excess of 30 percent for bilateral hearing loss disability.

2.  Entitlement to a total rating based on unemployability due to the severity of service-connected disability (TDIU).


REPRESENTATION

Appellant represented by:	Virginia Department of Veterans Affairs


ATTORNEY FOR THE BOARD

Robert E. O'Brien, Counsel



INTRODUCTION

The Veteran had periods of active service from November 1965 to November 1968 and from October 1972 to April 1977.  

This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the VARO in Roanoke, Virginia.  In December 2007, the Board remanded the matter to the RO to afford due process and for further development.  The claim was then denied by the Board in September 2009.  The Veteran and his representative appealed the determination to the United States Court of Appeals for Veterans Claims (Court).  In April 2010, pursuant to a Joint Motion for Remand, the case was returned to the Board for readjudication and the issuance of a new decision.  In October 2010, the Board again remanded the case for further development.  The case has been returned to the Board for appellate review.


FINDINGS OF FACT

1.  Bilateral hearing loss disability is manifested, at worst, by level IX hearing in the right ear and level III hearing in the left ear.  

2.  The Veteran's bilateral hearing loss disability is his only service-connected disability.

3.  The Veteran's service-connected disability alone does not preclude him from securing or following a substantially gainful occupation.  


CONCLUSIONS OF LAW

1.  The criteria for a disability evaluation in excess of 30 percent for bilateral hearing loss disability have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2011).

2.  The criteria for a TDIU have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (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. §§ 5102, 5103, 5103A, 5016, 5107, 5126) redefines VA's duties to notify and assist Veterans in developing claims for VA benefits.  Regulations implementing the VCAA are codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any 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).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1).

In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment in earning capacity, as well as general notice regarding how ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).

The Board notes that the United States Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis.  Shinseki v. Sanders, 129 S.Ct. 1696 (2009).  In this case, the Veteran and his representative have not demonstrated any prejudicial or harmful error in VCAA notice.  He was provided with letters in July 2004, January 2008, and November 2010.  The communication in November 2010 asked him to provide additional evidence, to include names, addresses, and dates of treatment for all non-VA health-care providers who treated him for his hearing loss beginning in 2000.  He was also asked to provide any relevant employment medical record.  In the communication received in January 2011, the Veteran stated that "there are no records available from that job, because they are under new management..."  

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 a 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; 38 C.F.R. § 3.159.

Here, VA obtained service treatment records along with VA and private medical records.  

The Board finds that the examination reports in the claims folder are sufficiently detailed with recorded history and clinical findings.  Examinations were conducted by medical professionals, and the associated reports reflect review of the pertinent medical records and the history of the present illness.  The examination reports include description of the symptoms and demonstrate objective evaluation.  Therefore, the Board concludes that the Veteran has been accorded adequate examinations in this matter.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Accordingly, the Board finds that VA has complied with the VCAA's notification and assistance requirements.  The claim for a higher rating for hearing loss disability is, therefore, ready to be considered on the merits.  

Pertinent Law and Regulations

Disability evaluations are determined by the application of the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  An evaluation of the left knee disability must include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment.  38 C.F.R. § 4.10.  

When a question arises as to which of two ratings should be applied to a particular diagnostic code, the higher evaluation is assigned if the disability more nearly approximates the criteria required for that rating.  38 C.F.R. § 4.7.

After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant.  38 C.F.R. § 4.3.

Ratings, in general, are intended to compensate for the average impairment of earning capacity resulting from a service-connected disability.  See generally 38 C.F.R. § 4.1.  Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  

Separate evaluations may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be "staged."  Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct periods when the service-connected disability exhibits symptoms that would warrant different ratings); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001).

In general, to evaluate the degree of disability from defective hearing, the Rating Schedule establishes 11 auditory acuity levels, level I for essentially normal acuity through level XI for profound deafness.  38 C.F.R. §§ 4.85, 4.87, Tables VI, VIa, VII.  Organic impairment of hearing acuity is rated on the results of controlled discrimination tests together with the average hearing threshold level as measured by pure tone audiometry testing in the frequencies of 1,000, 2,000, 3,000, and 4,000 hertz per second.  See 38 C.F.R. § 4.85.

Ratings of hearing loss disability involve a mechanical application of the rating criteria to the findings on official audiometry testing.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  Schedular evaluations are intended to give proper allowance for improvement by hearing aids.  38 C.F.R. § 4.86 (2011).

The applicable rating criteria for hearing impairment and diseases of the ear were revised effective June 10, 1999.  See 64 Fed. Reg. 25,209 (May 11, 1999) (codified at 38 C.F.R. § 4.85).  It is noteworthy that Table VII was amended such that hearing loss is now rated under a single code, Diagnostic Code 6100, regardless of the percentage of disability.

In addition, the regulations were amended to ensure that current medical terminology and clear criteria were used, and reflect current medical advances.  See 64 Fed. Reg. 25,202 (May 11, 1999).  The tables used to assign the Roman numerals and, then, to assign the appropriate disability rating were not changed.  Id.  Further, the amended regulations included additional provisions that pertained to "exceptional patterns of hearing impairment" under 38 C.F.R. § 4.86.  Specifically, when hearing loss is 55 decibels or more in each of the four specified frequencies (that is, 1,000, 2,000, 3,000, and 4,000 hertz), or hearing loss with a pure tone threshold of 30 decibels or less at 1,000 hertz, and 70 decibels or more at 2,000 hertz occurs, 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.  38 C.F.R. § 4.86.  That numeral will then be elevated to the next higher Roman numeral.  The amended regulations are applicable to the Veteran's claim.  

Factual Background and Analysis

The Board has thoroughly reviewed all the evidence in the claims folder.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail all the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1379, 1380 (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 should 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).

The claims file contains the report of a private audiology evaluation done in November 2004.  The findings were provided in graphic format, and, therefore, they provide only a limited basis for evaluating the bilateral hearing loss disability.  The report compared the results to a May 2001 audiometric examination which found a mild to moderate sensorineural hearing loss.  The November 2004 examiner commented that there was a drop at 1,000 hertz in both ears.  Otherwise, the examiner stated there was a stable pattern in each ear.  The regular use of amplification was recommended.

In November 2004 and June 2005 statements, the Veteran asserted that he was forced into early retirement because of worsening hearing.  He reported he was a grain operator and he stated all his commands were by radio, but because he could not hear the words clearly, he failed a physical examination.  

The Veteran was accorded audiologic examination by VA in February 2005.  He stated that because of his hearing loss his functional impairment included lip reading in order to converse effectively.  He added that the hearing loss disability had resulted in his forced retirement as a longshoreman.  He complained that he could not hear clearly conversation even in quiet environments, and he stated that his hearing aids did not work sufficiently to help him with his hearing impairment.  

On examination, pure tone thresholds, in decibels, were reported as follows:  

HERTZ
500
1000
2000
3000
4000
RIGHT EAR
N/A
70
80
85
80
LEFT EAR
N/A
65
50
55
50

The average decibel loss was 79 in the right ear and 55 in the left ear.  Speech audiometry testing showed speech recognition ability of 36 percent in the right ear and 80 percent in the left ear.  

Applying these results to the criteria in the Rating Schedule, the pure tone threshold average of 55 and the speech discrimination of 80 percent in the left ear results in level IV for that ear.  The pure tone threshold average of 79 and the speech discrimination score of 36 percent in the right ear results in level IX hearing in that ear.  Applying these results to the Table VII chart, a 30 percent evaluation is in order.  

The Veteran underwent another audiometric examination by VA in February 2009.  At that time pure tone thresholds, in decibels, were reported as follows:

HERTZ
500
1000
2000
3000
4000
RIGHT EAR
N/A
70
80
35
70
LEFT EAR
N/A
60
50
45
40

The average decibel loss of the right ear was 73.75 and the average decibel loss in the left ear was 48.75.  Speech audiometry showed speech recognition ability of 92 percent in the left ear and 88 percent in the right ear.  Diagnosis was severe sensorineural hearing loss from 1,000 to 8,000 hertz on the right and mild to moderately severe loss across the frequencies on the left.  

The examiner commented that the speech recognition scores were very good, and he noted communication was not strained while taking the Veteran's history.  The examiner further noted that all the history was taken in a quiet environment, and he added communication in quiet was recommended for all persons with hearing loss, no matter the severity.  He reported that the loss was productive of significant occupational impairment and he indicated the Veteran told him he was supposed to retire early because he could not pass the hearing test for his annual physical.  However, the audiologist opined that the hearing loss disability did not prevent the Veteran from doing his assigned duties.  The audiologist noted there was no impact on usual daily activities.  A diagnosis was made of mild loss of 750 hertz slumping to a severe sensorineural hearing loss for 1,000 to 8,000 hertz on the right and mild to moderately severe sensorineural hearing loss across the frequency ranges in the left.  

Applying the above results to the chart, the pure tone threshold average of 48.75 and the speech discrimination score of 92 percent in the left ear result in level I hearing for that ear.  The pure tone threshold average of 73.75 and speech discrimination of 88 percent in the right ear result in level III hearing in that ear.  

Applying these results to the pertinent chart, a noncompensable disability evaluation is in order.  

The claims file contains the report of a November 2010 audiometric examination accorded the Veteran at a private facility.  The testing showed decibel losses of 70 at 1,000 hertz, 80 at 2,000 hertz, 75 at 3,000 hertz, and 80 at 4,000 hertz in the right ear.  The average loss was 59.  For the left ear, testing showed decibel losses of 60 at 1,000 hertz, 60 at 2,000 hertz, 55 at 3,000 hertz, and 60 at 4,000 hertz.  The average decibel loss was 76.  His speech discrimination score was shown as 76 percent in each ear.  The examiner noted that, when compared to a 2004 evaluation, the thresholds were "stable."  A recommendation was made for binaural amplification as soon as possible.  Comparing these numbers to the chart, the hearing loss impairment resulted in 10 percent disability rating.  However, because the Veteran's hearing loss falls into the category of exceptional hearing impairment, the loss is 20 percent disabling in accordance with the provisions of 38 C.F.R. § 4.86 as cited above.

In view of the foregoing, the Board finds that the continuation of the 30 percent rating assigned is proper based on the results of the audiometric evaluations.  The evidence of record does not show the presence of impaired hearing acuity levels which would warrant the assignment of a higher disability rating for the Veteran's bilateral hearing loss disability.  Indeed, improvement in the Veteran's hearing was demonstrated at the time of the 2009 VA audiometric examination and would actually support a reduced rating.  Additionally, the results at the time of the November 2010 evaluation were not such as to warrant the assignment of a 30 percent rating.  Nevertheless, the Board will not second guess the RO's decision with regard to the rating to be assigned for the Veteran's hearing loss disability.  The Board notes again that the rating for hearing loss disability is determined by the mechanical application of the Rating Schedule to the numeric designations assigned based on audiometric test results.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).  The examinations referred to above are adequate for rating bilateral hearing loss disability because they describe the audiometric readings in sufficient detail to allow the Board to make a fully informed assessment.  Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).

To the extent that the Veteran reports that his acuity is worse than evaluated, the Board has considered his lay testimony.  However, far more probative of the degree of disability are the results of testing prepared by skilled professionals on several different occasions.  Essentially, the lay statements are of limited probative value and are far outweighed by the results demonstrated at the time of the audiometric examinations discussed above.

The Board has considered whether the case should be referred to the Director of VA Compensation and Pension Service for extraschedular consideration under the provisions of 38 C.F.R. § 3.321(b)(1).  The Court has held that the threshold factor for extraschedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate.  Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria set forth in the Rating Schedule for that disability.  If the criteria reasonably described the claimant's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, the assigned evaluation is, therefore, adequate, and no referral for extraschedular consideration is required.  See Thun v. Peake, 22 Vet. App. 111 (2008).  Here, the record reflects that the appellant does not require frequent hospitalizations for the disability adjudicated herein.  The manifestations of hearing loss impairment are not in excess of those contemplated by the schedular criteria.  In fact, as noted above, the impairment demonstrated does not warrant the assignment of a 30 percent rating.  In sum, there is no indication that the average industrial impairment for the hearing loss would be in excess of that contemplated by the assigned rating.  Accordingly, the Board has determined referral of the case for extraschedular consideration is not in order.


TDIU

VA will grant a TDIU when the evidence shows that the Veteran is precluded from obtaining or maintaining any type of gainful employment consistent with his education and occupational experience, because of the severity of the service-connected disabilities.  38 C.F.R. §§ 3.340, 3.341, 4.16 (2011).

A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  See 38 C.F.R. §§ 3.340, 3.341, 4.16(a).

In exceptional circumstances, where the Veteran does not meet the percentage requirements, a total rating may nevertheless be assigned upon a showing that the individual is not able to obtain or maintain substantially gainful employment.  38 C.F.R. § 4.16(b). 

The essential inquiry is "whether a Veteran's service-connected disability alone is of sufficient severity to produce unemployability."  See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  Consideration may be given to education, specialized training, and previous work experience, but not to an individual's age or to the impairment caused by any nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993).  

Considering the pertinent evidence of record, the Board finds that the criteria for a TDIU are not met.  The Board notes that service connection is in effect for only one disability, and that is the Veteran's bilateral hearing loss disorder.  It is rated as 30 percent disabling.  Accordingly, because he does not have a single disability rated at 60 percent or a combined rating of at least 70 percent, he does not meet the percentage requirements and, therefore, the criteria for a schedular evaluation for a TDIU under 38 C.F.R. § 4.16(a) are not met.

That notwithstanding, it is the policy of VA that all Veterans who are not able to secure and follow a substantially gainful occupation by reason of service-connected disability alone shall be rated totally disabled.  38 C.F.R. § 4.16(b).  Therefore, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any nonservice-connected condition and advancing age, that would justify a TDIU on an extraschedular basis.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  

The Veteran and his re essentially maintain that he is not able to work because of his hearing impairment.  The Veteran claims he was a crane operator and all his commands were by radio, but because he could not hear the words clearly, he failed a physical.  He claims that his hearing loss posed a danger to himself and to others in his capacity working as a crane operator.  However, the Board finds this does not rule out any and all forms of gainful employment.  At the time of the February 2009 VA audiometric examination, the examiner specifically noted that the Veteran's speech recognition scores were very good and stated that communication was not strained while taking the Veteran's history.  The examiner noted that, although both of these things were done in a quiet environment, communication in quiet was recommended for all persons with hearing loss, no matter the severity.  The examining audiologist opined that, while the Veteran stated he could not continue working if he could not pass his physical, in her opinion the hearing loss did not prevent the Veteran from doing his assigned duties.  Just because a Veteran is not able to work as a crane operator does not mean that he is not able to work in any number of occupations.  As indicated in the discussion above, the hearing impairment that has been demonstrated on several different audiometric examinations is not the level that would indicate severe or total occupational impairment.  The veteran has not submitted any evidence that shows he is unemployable from all fields of endeavor due solely to his hearing loss disability.  He was asked to get a statement from the company where he was employed as a crane operator, but he did not do so, indicating "new management" had taken over and there were no records available.  However, he did not get a statement from the new management that he could not be hired because of his hearing impairment.  The Board accepts the Veteran's assertions of significant difficulty with his hearing while employed as a crane operator, but it does not find the hearing loss impairment means that he is precluded from engaging in all forms of gainful employment.  As noted above, the 2009 examiner specifically stated the hearing loss demonstrated did not produce functional impairment and did not restrict the Veteran from performing his assigned duties.

In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as a preponderance of the evidence is against the claim, that doctrine is not for application.  See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001).  


ORDER

A disability rating in excess of 30 percent for bilateral hearing loss disability is denied.  

Entitlement to a TDIU is denied.  


	                        ____________________________________________
	MICHAEL D. LYON 
	Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs