Citation Nr: 1300905	
Decision Date: 01/09/13    Archive Date: 01/16/13

DOCKET NO.  10-46 152	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUE

Entitlement to increased ratings for bilateral hearing loss, currently assigned "staged" ratings of 20 percent prior to June 26, 2012, and 30 percent from that date.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and his spouse


ATTORNEY FOR THE BOARD

K.S. Hughes, Counsel


INTRODUCTION

The Veteran had active duty service from September 1943 to October 1945 and additional service from September 1957 to October 1957.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas.  In February 2012, the Veteran and his spouse testified at a Travel Board hearing.  A transcript of that hearing is of record.  An interim, September 2012, rating decision increased the rating for bilateral hearing loss to 30 percent, effective June 26, 2012.  Since the Veteran has not expressed satisfaction with "staged" ratings (and as the bilateral hearing loss disability rating is less than the maximum under the applicable criteria) the matter remains on appeal.  See AB v. Brown, 6 Vet. App. 35 (1993).  The issue is characterized to reflect that staged ratings are assigned, and that both "stages" of the rating are for consideration.

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.  Prior to June 26, 2012, it is not shown that the Veteran's right ear hearing acuity was worse than Level III or his left ear hearing acuity was worse than Level VIII.

2.  After June 26, 2012, it is not shown that the Veteran's hearing acuity was worse than Level VI in each ear.





CONCLUSION OF LAW

Ratings in excess of 20 percent prior to June 26, 2012, or in excess of 30 percent from that date are not warranted for the Veteran's bilateral hearing loss.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.85, Diagnostic Code (Code) 6100, 4.86 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA applies to the instant claim.

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, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  A December 2009 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing.  This letter also informed the Veteran of rating and effective date criteria.  The Veteran has had ample opportunity to respond/supplement the record.  A September 2012 supplemental statement of the case (SSOC) then readjudicated the matter.

The Veteran's service treatment records (STRs) and pertinent post-service treatment records are associated with the claims file.  He has not identified any pertinent treatment records that are outstanding.  The RO has arranged for VA audiological examinations in January 2010 and June 2012.  The June 2012 audiological examination is substantially compliant with the Board's remand instructions.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  The examiners obtained a reported history from the Veteran and conducted thorough examinations, which included certified audiometry necessary for a proper determination in the matter; thus, the examinations are adequate.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes).  

In Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the United States Court of Appeals for Veterans Claims (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.  The Court further noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  Here, the January 2010 examination report does not include the examiner's comment regarding the impact of the Veteran's hearing loss on his ability to function in occupational and daily living activities.  However, the June 2012 VA audiometry report does include such comment, and, in essence, constitutes corrective action addressing the defect.  In addition the Veteran has described the impact of his hearing loss on his daily activities; his accounts are considered credible.  (He has reported that he can hear sounds but has trouble distinguishing words and must rely on lip reading.)  The Board finds no reason to question the Veteran's reports and accepts his statements at face value.  Notably, the Veteran has not alleged any prejudice from an examination deficiency.  He has not identified any pertinent evidence that is outstanding.  VA's duty to assist is met.  Accordingly, the Board will address the merits of the claim.

Legal Criteria, Factual Background, and Analysis

Initially, the Board notes that all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal, has been reviewed.  The Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) have both been reviewed.  At present there are no additional documents pertinent to this appeal in Virtual VA.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence of record as appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4.  38 U.S.C.A. § 1155.  The appropriate evaluation for hearing impairment is determined under the criteria in 38 C.F.R. §§ 4.85, 4.86.

The Rating Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on testing (by a state-licensed audiologist) including puretone thresholds and speech discrimination (Maryland CNC test).  See 38 C.F.R. § 4.85.  Where there is an exceptional pattern of hearing impairment (as defined in 38 C.F.R. § 4.86) the rating may be based solely on puretone threshold testing.  See 38 C.F.R. § 4.85, Table VIA.  One exceptional pattern of hearing impairment occurs when the puretone thresholds in each of the four frequencies (1,000, 2,000, 3,000 and 4,000 Hertz (Hz)) are 55 decibels or greater.  Another occurs when the puretone threshold at 1000 hertz is 30 decibels or less, and the threshold at 2000 hertz is 70 decibels or more.  See 38 C.F.R. § 4.86(a)(b).  Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear.

Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).

The Court has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  Here, the RO has assigned "staged" ratings for the Veteran's bilateral hearing loss of 20 percent prior to June 26, 2012 and 30 percent that date.  A close review of the record reveals no distinct period of time when the criteria for a rating exceeding those currently assigned were met.  

In connection with his December 2009 claim for an increased rating, the Veteran submitted a September 2009 audiology consultation report which noted his complaint of decreased right ear hearing acuity since the last "audio" in March 2008.  An audiogram was accomplished and the assessment was slight to mild sloping to moderate SNHL (sensorineural hearing loss) 250-1000 Hz, moderately severe to severe SNHL 1500-8000 Hz for the right ear and mild SNHL 250-1000 Hz, moderate sloping to profound SNHL 1500-8000 Hz for the left ear.  Word recognition scors were poor for both ears.  The examiner noted that "this degree of hearing loss can cause significant communication problems, especially under adverse listening conditions."  [Notably, only the graphic representation of the audiogram is included in the record, with no numeric interpretation provided.  However, the audiometry results are conveyed in a straightforward graph and the Board finds that it is consistent with the assessment provided.  See Kelly v. Brown, 7 Vet. App. 471 (1995) (the Court held that it could not interpret the results of an audiograph because interpretation requires a factual finding, which is not the role of the Court in the first instance, and further indicated that the Board was empowered to make such factual findings in the first instance).]  

On the authorized audiological evaluation in January 2010, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
45
75
70
75
LEFT
30
35
65
90
90

Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 58 percent in the left ear.  The diagnosis was right ear WNL (within normal limits) at 250 Hz then a mild sloping to severe SNHL 1000 to 8000 Hz and left ear, a mild SNHL 250 to 1000 Hz then sloping to a moderately severe to profound SNHL 1500 to 8000 Hz.  

At the February 2012 Travel Board hearing, the Veteran and his wife testified that his hearing impairment had increased since the most recent, January 2010 VA examination.  He reported that he was able to hear sounds but was unable to distinguish words and had to rely on lip reading.  

On the authorized audiological evaluation in June 2012, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
45
55
80
80
80
LEFT
40
50
75
95
95

Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 68 percent in the left ear.  The examiner noted that the test results were valid for rating purposes and the use of speech discrimination scores are appropriate for this Veteran.  The diagnosis was SNHL in the frequency range of 500 to 4000 Hz.  Regarding functional impact of hearing loss, the examiner noted that the Veteran's hearing loss did impact the ordinary conditions of daily life because he reported difficulty hearing normal conversation without his VA issued hearing aids.  Regarding the question of whether there had been a change in the Veteran's hearing since his last VA examination, the examiner commented:

When comparing Veteran's current hearing to his last VA examination performed in 2010 there have been mild shifts in hearing which are considered normal by Audiologic standards.  The minor 10-15dB changes in hearing are not considered clinically significant.  It is the opinion of this examiner that hearing loss alone does not render a person unable to seek or maintain gainful employment.  It is possible that counseling or updated hearing aids could be beneficial.  

Prior to June 26, 2012

On January 2010 VA audiological evaluation, the average puretone threshold was 66 decibels, right ear, and speech discrimination was 84 percent for that ear.  Under Table VI, such hearing acuity constitutes Level III hearing.  In the left ear, the average puretone threshold was 70 decibels and speech discrimination was 58 percent.  Under Table VI, such hearing acuity constitutes Level VIII hearing.  As all puretone thresholds in both ears in each of the four frequencies (1,000, 2,000, 3,000 and 4,000 Hertz ) were 55 decibels or greater, an exceptional pattern of hearing loss was shown in each ear (See 38 C.F.R. § 4.86 ).  Hence, the disability may be rated under Table VI or Table VIA, whichever is to the Veteran's advantage.  Under Table VIA the findings reflect Level V hearing in the right ear and Level VI hearing in the left ear.  Application of the findings under with Table VI or Table VIA to Table VII results in a 20 rating under 38 C.F.R. § 4.85, Code 6100.  Notably, this examination is consistent with the findings on September 2009 VA audiological evaluation.  

After June 26, 2012

On June 2012 audiological evaluation, the right ear average puretone threshold was 75 decibels and speech discrimination was 92 percent in that ear.  Under Table VI, such hearing acuity constitutes Level II hearing in the right ear.  In the left ear, the average puretone threshold was 79 decibels and speech discrimination was 68 percent.  Under Table VI, such hearing acuity constitutes Level VI hearing.  On this examination, only the right ear shows an exceptional pattern of hearing loss (the left ear was 50 decibels at 1000 Hz).  Applying the findings to Table VIA, the Veteran is shown to have Level VI hearing in the right ear.  Thus, applying Table VIA is of greater advantage the Veteran.  Applying Table VII, a 30 percent rating under Code 6100 is warranted.

In October 2012 written argument, the Veteran's representative argued that the June 2012 Maryland CNC scores "should be ignored for rating purposes" because they are not in line with the puretone test scores and appear as inflated scores which do not represent a true picture of the Veteran's deteriorating hearing.  However, as noted, the June 2012 audiologist specifically stated that the speech discrimination score is appropriate for this Veteran.  As the examiner is an audiologist trained in evaluating hearing and expressed familiarity with the factual record, the Board finds the assessment of the examiner as to the appropriateness of relying on the speech discrimination scores to be highly probative evidence in the matter, and in the absence of any competent evidence to the contrary, persuasive.

Regarding the Veteran's and his spouse's assertions that his hearing impairment is greater than reflected by the 20 percent rating assigned prior to June 26, 2012 and the 30 percent rating assigned from that date, the Board acknowledges they are competent to provide testimony as to the impact of the Veteran's hearing loss on his functional abilities.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  However, as laypersons, they are not competent to establish the level of hearing disability present by their own opinion (as under governing regulation that requires audiometric testing).  The rating of hearing loss disability involves the mechanical application of the rating schedule to findings of controlled audiometry, which here results in a 20 percent rating prior to June 26, 2012, and a 30 percent rating from that date.  Lendenmann, 3 Vet. App. at 349.

The Board has also considered whether referral for consideration of an extraschedular rating is indicated.  38 C.F.R. § 3.321(b)(1).  In this regard, the Board observes that the symptoms and impairment (i.e., impact on function) associated with the service-connected bilateral hearing loss are fully encompassed by the criteria for the 20 percent rating prior to June 26, 2012, and a 30 percent rating from that date; therefore, those criteria are not inadequate, and referral for extraschedular consideration is not warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  As the Veteran has not alleged unemployability due to his service-connected bilateral hearing loss (his testified that his current level of hearing disability would have prevented him from performing his duties prior to his retirement), the matter of entitlement to a total rating based on individual unemployability is not raised by the record.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).

The preponderance of the evidence is against the Veteran's claim for increase.  Accordingly, the appeal in this matter must be denied.


ORDER

Ratings for bilateral hearing loss in excess of 20 percent prior to June 26, 2012, and/or 30 percent rating from that date are denied.




_________________________________________________
Michael J. Skaltsounis
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs