Citation Nr: 1300157	
Decision Date: 01/03/13    Archive Date: 01/11/13

DOCKET NO.  11-24 278	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

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


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

Kristy L. Zadora, Counsel


INTRODUCTION

The Veteran had active duty service from March 1955 to November 1957.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA), which assigned the Veteran a 30 percent rating for his bilateral hearing loss.  The Veteran submitted a notice of disagreement with this determination in August 2009, and timely perfected his appeal in August 2011.

In March 2012, subsequent to the issuance of the June 2011 statement of the case (SOC), additional VA treatment records were associated with the Veteran's electronic Virtual VA claims file.  The Veteran waived RO consideration of this evidence in February 2012.  See 38 C.F.R. § 20.1304 (2012).

Additionally, the Board notes that the United States Court of Appeals for Veterans Claims (Court) held in Rice v. Shinseki, 22 Vet. App. 447 (2009) that every claim for a higher rating includes a claim for a total rating based on individual unemployability (TDIU) where a Veteran claims that his service-connected disability prevents him from working.  The Veteran has not alleged that he is currently unemployed or completely unemployable as result of the aforementioned service-connected disability.  As such, the Board finds that Rice is not applicable to the current appeal.  There must be cogent evidence of unemployability in the record.  See Rice, 22 Vet. App. 447, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009).  Thus, any further discussion of an issue of entitlement to TDIU is not necessary.  See Rice, supra.

In his letter of September 2009, the Veteran expresses dismay with the possible effects to his mental health caused by hearing loss; accordingly, the claim of service connection for a psychiatric disability, to include as secondary to the service-connected hearing loss is referred to the RO for appropriate action.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).



FINDINGS OF FACT

1.  In June 2009, the VA audiological evaluation reflected that the Veteran's service-connected bilateral hearing loss was manifested by no worse than Level V hearing impairment in the right ear and Level VI in the left ear.

2.  In March 2011, the VA audiological evaluation reflected that the Veteran's service-connected bilateral hearing loss was manifested by no worse than Level V hearing impairment in the right ear and Level VIII in the left ear as an exceptional pattern of hearing impairment.


CONCLUSION OF LAW

The criteria for a rating in excess of 30 percent for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b), (West 2002); 38 C.F.R.     §§ 3.102, 3.159, 3.321, 4.1-4.10, 4.85, 4.86, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA has a duty to notify and assist Veterans in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  See 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 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.

Prior to the initial adjudication of the Veteran's claim, a letter dated in May 2009 fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a); 38 C.F.R.   § 3.159(b)(1); Quartuccio, at 187.  The Court held that to satisfy the first Quartuccio element for an increased-compensation claim, section 5103(a) compliant notice must meet a four part test laid out in Vazquez-Flores v. Peake, 22 Vet. App. 37(2008).  The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) overruled the Vazquez-Flores in part, striking claimant-tailored and "daily life" notice elements.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). 

Thus modified, VA must notify the claimant that, 1) to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability, 2) a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment, and 3) provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation.  See Vazquez-Flores, 22 Vet. App. at 43, overruled in part sub. nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  This was accomplished by the May 2009 notice letter.

All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims.  Once this has been accomplished, all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error).  In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his appellate claim, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence.  Accordingly, there is no further duty to notify. 

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records, various private treatment records and VA medical records are in the file.  In addition, 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.  See 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.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a).

The RO provided the Veteran appropriate VA examinations in June 2009 and March 2011. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected bilateral hearing loss disability since he was last examined.  See 38 C.F.R. § 3.327(a).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  See VAOPGCPREC 11-95.  The VA examination reports are thorough and supported by VA outpatient treatment records.  The examinations in this case are adequate upon which to base a decision.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). 

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 Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007).  Importantly, the Board notes that the Veteran is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006).  The Veteran has submitted argument and evidence in support of the appeal.  Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication is not affected.

II.  Claim for Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule).  See 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, 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.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present.  See 38 C.F.R. § 4.2.

It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence.  See 38 C.F.R. § 4.3.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.

In evaluating hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Hearing loss disability evaluations range from noncompensable (zero percent) to a maximum 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests (Maryland CNC) in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second (Hertz).  The rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal hearing acuity through Level XI for profound deafness.  VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a puretone audiometry test.  Under 38 C.F.R. §§ 4.85 , the vertical lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. 

The percentage evaluation is determined from Table VII (in 38 C.F.R. § 4.85) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation for the ear having the poorer hearing acuity.  For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VI," the percentage evaluation is 20 percent.  See 38 C.F.R.   § 4.85.

The provisions of 38 C.F.R. § 4.86(a) pertaining to exceptional patterns of hearing impairment provide that, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) 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 will be evaluated separately.  The provisions of 38 C.F.R. § 4.86(b) pertaining to exceptional patterns of hearing impairment provide that, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, 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. That numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately. 

The Veteran's service-connected bilateral hearing loss is currently assigned a 30 percent disability rating pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100.

A.  Schedular Rating

The Veteran contends that his service-connected bilateral hearing loss is more severe than contemplated by his currently assigned 30 percent disability rating. 

The Veteran was afforded a VA audiological examination in June 2009.  At that time, the Veteran exhibited puretone thresholds, in decibels, as follows:

Hertz		1000	2000	3000	4000	Avg.
Right		35	70	70	65	60
Left		80	65	80	90	79

Speech audiometry (Maryland CNC) revealed speech recognition ability of 72 percent in the right ear and 68 percent in the left ear.  The results in this evaluation reveal that the Veteran's hearing loss was manifested by no more than level VI hearing acuity in the left ear and V hearing acuity in the right ear.  See 38 C.F.R.     § 4.85.  Such designation equates to a 20 percent rating.  See 38 C.F.R. § 4.85.  In addition, and in considering the exceptional pattern of hearing impairment present in the left ear, his hearing loss manifested by no more than level VII in the left ear and level IV in the right ear.  See 38 C.F.R. § 4.86.  Such a designation equates to a 30 percent rating.  See 38 C.F.R. § 4.85.

The Veteran was afforded a second VA audiological examination in March 2011.  At that time, the Veteran exhibited puretone thresholds, in decibels, as follows:

Hertz		1000	2000	3000	4000	Avg.
Right		55	75	75	70	69
 Left		85	80	85	90	85

Speech audiometry (Maryland CNC) revealed speech recognition ability of 82 percent in the right ear and 60 percent in the left ear.  The results in this evaluation reveal that the Veteran's hearing loss was manifested by no more than level VIII hearing acuity in the left ear and level IV in the right ear.  See 38 C.F.R. § 4.85.  Such designation equates to a 20 percent rating.  See 38 C.F.R. § 4.85.  In addition, and in considering the exceptional pattern of hearing impairment present in both ears, his hearing loss manifested as no more than level VIII in the left ear and level V in the right ear.  See 38 C.F.R. § 4.86.  Such a designation equates to a 30 percent rating.  See 38 C.F.R. § 4.85.

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. 

Applying the findings of the June 2009 and March 2011 VA audiological examinations to the rating criteria for hearing impairment, the Board finds that the criteria for an increased rating for bilateral hearing loss have not been met.  As such, the probative evidence fails to demonstrate a more severe hearing loss disability than is currently addressed by the Veteran's 30 percent disability rating.  Therefore, the claim for entitlement to a disability rating in excess of 30 percent must be denied.

The Board acknowledges the Veteran's statements that his hearing impairment has worsened.  Regarding the Veteran's statements, the Board acknowledges that he is competent to give evidence about his experiences; i.e., he is competent to report that he is having greater trouble hearing.  See Charles v. Principi, 16 Vet. App. 370, 274 (2002) (finding Veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses).   However, the Veteran is not competent to testify that his hearing has worsened to a level in excess of 30 percent under the Diagnostic Code 6100.   Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required.  See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  There is no indication in the record that the Veteran is a medical professional.  Therefore, as a layperson, he is not competent to provide evidence that requires medical knowledge because he lacks the requisite professional medical training, certification, and expertise to present opinions regarding diagnosis and etiology.  See Espiritu v. Derwinski, 2 Vet. App. 492 (1992).  The Board affords greater probative weight to the medical evidence. 

While the Board is sympathetic to the Veteran's assertions that that his hearing loss resulted in feelings of loneliness and isolation, the fact remains, however, that the VA rating criteria are definitive and provide for a precise result based on audiometric test results.  The Veteran's subjective report of difficulty hearing, and any resulting emotional and/or social effects, cannot be the basis for an evaluative rating.  The Board is bound to apply the VA Rating Schedule, under which the rating criteria are defined by audiometric test findings involving hearing acuity in a controlled laboratory environment.

B.  Extraschedular Rating

The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  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 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); Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court set forth a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether the Veteran's disability picture is contemplated by the rating schedule.  If so, the rating schedule is adequate and an extraschedular referral is not necessary.  If, however, the Veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  These include marked interference with employment and frequent periods of hospitalization.  Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a Veteran's disability picture requires the assignment of an extraschedular rating.

With regard to the Veteran's service-connected bilateral hearing loss disability, the evidence of record does not reflect that the Veteran's disability picture is so exceptional as to not be contemplated by the rating schedule.  There is no unusual clinical picture presented, nor is there any other factor, which takes the disability outside the usual rating criteria.  The rating criteria for the Veteran's currently assigned 30 percent disability rating under Diagnostic Codes 6100 contemplate his level of symptomatology.  Specifically, the criteria account for the Veteran's current puretone thresholds and speech recognition ability.  The Board acknowledges the Veteran's complaints of difficulty understanding speech and the resulting emotional and/or social impact.  The Board notes that in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  Martinak, 21 Vet. App. at 455.   According to the June 2009 VA examiner, the Veteran's hearing loss resulted in difficulty hearing conversational speech as well as speech in the presence of background noise.  The Veteran did not report being currently employed nor did he alleged being unable to work due to his bilateral hearing loss.

Further, the Veteran's hearing difficulties are adequately contemplated by the Rating Schedule.  Notably, 38 C.F.R. §§ 4.85 and 4.86 adequately contemplate any functional loss due to hearing impairment.  As the Veteran's disability picture is contemplated by the Rating Schedule, the threshold issue under Thun has not been met and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary.

In short, the evidence does not support the proposition that the Veteran's service-connected bilateral hearing loss disability presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards to warrant the assignment of an extraschedular rating under 38 C.F.R.      § 3.321(b)(1).  Thus, referral of this issue to the appropriate VA officials for consideration of an extraschedular evaluation is not warranted.

When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).  The preponderance of the evidence in this case is against the Veteran's claim for a higher disability rating than that currently assigned.

 

ORDER

Entitlement to a rating in excess of 30 percent for bilateral hearing loss is not warranted.



____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs