Citation Nr: 1301293 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 07-25 987 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to a rating in excess of 20 percent for bilateral hearing loss disability for the period prior to March 7, 2012. 2. Entitlement to a rating in excess of 30 percent for bilateral hearing loss disability for the period since March 7, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from October 29, 1944 to February 6, 1945 and from February 28, 1945 to December 28, 1946. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in January 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. This case was remanded in February 2012. In an April 2012 rating decision, the Appeals Management Center (AMC) granted an increased rating to 30 percent for bilateral hearing loss disability, effective March 7, 2012. The case was again remanded by the Board in June 2012 for further clarification of the evidence. When a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the claims for an evaluation in excess of 20 percent prior to March 7, 2012 and in excess of 30 percent since March 7, 2012 remain on appeal. 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 March 7, 2012, the Veteran at worst had Level V hearing loss in the right ear and Level VI hearing loss in the left ear. 2. From March 7, 2012, the Veteran at worst has Level V hearing loss in the right ear and Level VIII hearing loss in the left ear. CONCLUSIONS OF LAW 1. Prior to March 7, 2012, the criteria for a disability evaluation in excess of 20 percent for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2012). 2. From March 7, 2012, the criteria for a disability evaluation in excess of 30 percent for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Introductory Matters In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran 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. See 38 C.F.R. § 3.159(b)(1). A November 2006 letter explained the evidence necessary to substantiate the claims for increase and VA and the Veteran's responsibilities. The letter also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, the letter explained how a disability rating is determined and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This letter was provided to the Veteran prior to the initial adjudication of his claims, pursuant to Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to the duty to assist, the claims file contains VA audiological evaluation reports, private audiological evaluation reports, VA medical records and the assertions of the Veteran and his representative. The Board has found nothing to suggest that there is any outstanding available evidence with respect to the Veteran's claim. No further action is required to comply with the duty to notify and assist the Veteran in developing the facts pertinent to his claim. Merits of the Claim The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating the severity of a particular disability it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Evaluations of hearing loss range from noncompensable to 100 percent, based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. 38 C.F.R. § 4.85. To evaluate the degree of disability for service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Examinations are conducted using the controlled speech discrimination tests (Maryland CNC), together with the results of the puretone audiometry test. The horizontal lines in table VI, referenced in 38 C.F.R. § 4.85, represent nine categories of percent of discrimination based upon the controlled speech discrimination test. The vertical columns in table VI represent nine categories of decibel loss based upon the puretone audiometry test. The numeric designation of impaired efficiency (I through XI) will be determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to puretone decibel loss; thus, for example, with a percent of discrimination of 70 and average puretone decibel loss of 64, the numeric designation is V for one ear. The same procedure will be followed for the other ear. The numeric designations are then applied to table VII, also referenced in 38 C.F.R. § 4.85, to determine the Veteran's disability rating. When the pure tone thresholds at the four specified frequencies (1000, 2000, 3000, and 4000 hertz) are 55 decibels or more, or when the pure tone thresholds are 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. Each ear will be evaluated separately. In the latter instance, that numeral will then be elevated to the next highest Roman numeral. 38 C.F.R. § 4.86(a) and (b) (exceptional patterns of hearing impairment). At a December 2006 VA audiological evaluation, audiometry revealed that puretone thresholds (in decibels) were: HERTZ 1000 2000 3000 4000 RIGHT 55 70 70 70 LEFT 60 75 80 75 The average puretone thresholds were 66.25 decibels, right ear, and 72.5 decibels, left ear. Speech audiometry revealed that speech recognition was 82 percent in the right ear and 70 percent in the left ear. The diagnosis was bilateral sensorineural hearing loss. The Veteran reported that he had the greatest difficulty hearing during one on one conversations. In a February 2007 notice of disagreement, the Veteran reported that he had been told by a hearing technician that his hearing was worse than it had been a year prior. He indicated that he had been issued a new hearing aid and believed that a higher disability rating was warranted for his hearing loss. At an October 2008 VA audiological evaluation, audiometry revealed that puretone thresholds (in decibels) were: HERTZ 1000 2000 3000 4000 RIGHT 50 65 65 80 LEFT 60 70 80 80 The average puretone thresholds were 65 decibels, right ear, and 72.5 decibels, left ear. Speech audiometry revealed that speech recognition was 82 percent in the right ear and 72 percent in the left ear. The diagnosis was bilateral sensorineural hearing loss. The Veteran reported worsening hearing. In a March 2010 letter, the Veteran's wife indicated that she had lived with the Veteran for 36 years and had noticed that his hearing was worsening. She found that it was difficult to communicate with him. She had to keep repeating what she needed to convey to him, which was frustrating for both of them. At an April 2010 VA audiological evaluation, audiometry revealed that puretone thresholds (in decibels) were: HERTZ 1000 2000 3000 4000 RIGHT 55 65 75 75 LEFT 65 75 80 80 The average puretone thresholds were 67.5 decibels, right ear, and 75 decibels, left ear. Speech audiometry revealed that speech recognition was 80 percent in the right ear and 68 percent in the left ear. The diagnosis was bilateral sensorineural hearing loss. The audiologist found that the hearing loss had a significant effect on occupational functioning in that the Veteran would have difficulty hearing at a distance and in noisy environments. At a March 2012 VA audiological evaluation, audiometry revealed that puretone thresholds (in decibels) were: HERTZ 1000 2000 3000 4000 RIGHT 55 70 70 70 LEFT 65 75 80 80 The average puretone thresholds were 66 decibels, right ear, and 75 decibels, left ear. Speech audiometry revealed that speech recognition was 84 percent in the right ear and 52 percent in the left ear. The diagnosis was sensorineural hearing loss. The audiologist compared the VA examination reports of record to private examination reports from November 2009, August 2008 and June 2000. The audiologist noted that overall, the puretone thresholds were comparable and that word recognition scores were comparable in the left ear. The word recognition score was significantly poorer in the right ear in 2009 probably due to the lower presentation level. Regarding the August 2008 examination, hearing thresholds were significantly poorer in comparison to all of the other examinations. The overall test results indicated that the recorded responses were at the suprathreshold level (as evidenced by the poor agreement of speech reception thresholds and the puretone average, and the fair/poor word recognition obtained at a presentation level at or below the recorded thresholds). The audiologist found that the Veteran's hearing loss did impact the ordinary conditions of daily life, including the ability to work because it was simply harder for the Veteran to hear. In a June 2012 addendum, the March 2012 VA audiologist specifically reported the results of the August 2008, November 2009 and June 2000 private audiological evaluations. At the August 2008 private audiological evaluation, audiometry revealed that puretone thresholds (in decibels) were: HERTZ 1000 2000 3000 4000 RIGHT 90 95 -- 100 LEFT 105 105 -- 105 Speech audiometry revealed that speech recognition was 72% at 100 dBHL in the right ear and 68% at 100 dBHL in the left ear. At the November 2009 private evaluation, audiometry revealed that puretone thresholds (in decibels) were: HERTZ 1000 2000 3000 4000 RIGHT 55 70 65 70 LEFT 55 75 75 80 The average puretone thresholds were 65 decibels, right ear, and 71.25 decibels, left ear. Speech audiometry revealed that speech recognition was 68 percent at 85dBHL in the right ear and 50 percent at 85dBHL in the left ear. At the June 2000 private audiological evaluation audiometry revealed that puretone thresholds (in decibels) were: HERTZ 1000 2000 3000 4000 RIGHT 45 65 70 70 LEFT 55 65 65 65 The average puretone thresholds were 62.5 decibels, right ear, and 62.5 decibels, left ear. Speech audiometry revealed that speech recognition was 88 percent in the right ear and 80 percent in the left ear. The examiner commented that the methods and results reflected in the private examination reports from June 2000 and November 2009 were consistent with the methods and results contained in the VA examination reports, including the April 2010 VA examination report. The methods and results obtained from the August 2008 private evaluation were not consistent with the VA examination reports. The thresholds obtained in August 2008 were significantly poorer than the 2000 to 2008 private and VA exams as well as the April 2010 VA examination. The audiologist reiterated that the overall test results indicated that the recorded responses were at the suprathreshold level (as evidenced by the poor agreement of speech reception thresholds and the puretone average, and the fair/poor word recognition obtained at a presentation level at or below the recorded thresholds. The audiologist noted that this examination did not have good intra-test reliability as was evidenced by comparison to all the other examinations. The audiologist also found that the apparent discrepancy in speech discrimination scores between the November 2009 private audiological evaluation and the April 2010 VA evaluation was due to the presentation level. The presentation level in November 2009 was lower in the both ears than in April 2010. Thus, the score from 2009 did not reflect the Veteran's best ability. Regarding the functional effects of the Veteran's hearing loss on occupational activities and daily life, the audiologist commented that the Veteran had moderately severe to severe sensorineural hearing loss in both ears. Without reasonable accommodation of hearing aids and amplified phones, the Veteran would not be able to detect soft to average sounds, including most of the speech frequencies. He would be able to detect loud alerting signals. He would not be able to use a regular phone to relay messages or converse for employment or socialization. He would not be able to attend meetings. He would be able to attend to activities of daily living (eating, dressing, bathing and ambulating) and drive a vehicle. The audiologist noted that with reasonable accommodation (of which the Veteran had available to him), the Veteran would be able to have conversations with one or more people in a quiet environment. The distance could range from very close to 8 feet. The audiologist noted that the Veteran should be able to follow employer instructions and converse on the phone and that he also should be able to perform other job functions to his ability. The audiologist also observed that even with reasonable accommodation, the Veteran's ability to interact in more demanding listening situations such as group meetings, noisy situations or a room with poor acoustics would be compromised. Hearing aids could be programmed to reduce amplification for noise but could not eliminate noise just as a person with normal hearing could not eliminate background noise and could have increased difficulty. The Veteran's word recognition was good in the right ear and poor in the left ear. The audiologist noted that with reasonable accommodation, he would be able to detect sounds/speech but it would be more distorted in the left ear. He would have increased difficulty with speech directed to his left ear. The audiologist noted that the auditory system must integrate information from both ears, try to separate the noise and then process the information - at the same time, the brain is using visual cues such as gestures, lip movements, facial expressions and contextual cues from the topic of conversation. As noted above, the March 2012 VA audiologist found that the methods and results from the August 2008 private audiological evaluation were not consistent with the other audiological evaluations of record, specifically indicating that the recorded responses were at the suprathreshold level. The audiologist specifically supported this finding by noting the poor agreement between speech reception thresholds and puretone average and the fair/poor word recognition obtained at a presentation level at or below the recorded thresholds. The audiologist also indicated that the private examination did not have good intra-test reliability as was evidenced by comparison to the results from all the other audiological evaluations. Additionally, the audiologist found that the apparent discrepancy in speech recognition scores between the November 2009 private evaluation and the April 2010 VA evaluation resulted from the use of lower presentation levels during the November 2009 testing, which in turn produced November 2009 speech recognition scores that did not reflect the Veteran's best ability. There is no evidence or record to the contrary (i.e. evidence that the August 2008 results accurately assessed the Veteran's level of hearing loss for VA disability purposes, or that the November speech recognition score accurately assessed his speech recognition ability for VA disability purposes). Thus, for disability rating purposes, the Board will discount the entirety of the August 2008 private evaluation results along with the November 2009 speech recognition scores. The test results for both ears from December 2006, April 2010 and March 2012 and the test results for the left ear from October 2008 may be considered under both Tables VI and VIA as these results show an exceptional pattern of hearing impairment characterized by puretone thresholds of 55 decibels or more at all specified frequencies. 38 C.F.R. § 4.86(a). The VA right ear test results from October 2008 will only be considered under Table VI as an exceptional pattern of hearing as this testing did not show an exceptional pattern of hearing impairment. Also, the November 2009 test results will only be considered under Table VIA as the November 2009 speech recognition scores were not reflective of the Veteran's best ability. Considering the above mentioned testing of record during the appeal period, prior to March 7, 2012, the evidence does not show that the Veteran had hearing loss any worse than Level V in the right ear and Level VI in the left ear. For example, the April 2010 left ear purtetone threshold averages were 67.5 in the right ear and 75 in the left ear. Applying these values into Table VIA leads to an assignment of Level V hearing loss in the right (better) ear and a Level VI hearing loss in the left (poorer) ear. This results in the assignment of a 20 percent rating under Table VII. 38 C.F.R. § 4.85, 4.86. If the April 2010 speech recognition scores are considered along with the puretone threshold averages under Table VI, the Roman numeral assignment for the right ear improves to Level IV and the Roman numeral assignment for the left ear remains the same. Thus, it is appropriate to use the Table VIA findings. 38 C.F.R. § 4.86(a). Other findings of record under consideration prior to March 7, 2012 do not result in the assignment of any higher levels of hearing impairment. Accordingly, based on the mechanical application of the rating criteria to the test results, a 20 percent rating is warranted for this time frame. From March 7, 2012, based on the examination results from that date, the Veteran is not shown to have hearing loss any worse than Level V in the right ear and Level VIII in the left ear. Applying the right (better) ear puretone threshold average of 66 into Table VIA results in assignment of Level V hearing loss in that ear. Applying the left (poorer) ear puretone threshold average of 75 and speech recognition score of 52 into Table VI results in assignment of Level VIII hearing loss in that ear. Under Table VII, this leads to assignment of the existing 30 percent rating. If the speech recognition score in the right ear (84) is considered along with the puretone threshold average of 66 under Table VI, the Roman numeral assignment improves to Level III for this ear. If the left ear puretone threshold average of 75 is considered alone under Table VIA, the Roman numeral assignment improves to Level VI for this ear. Thus, it is appropriate to use the Table VIA findings for the right ear and the Table VI findings for the left ear. There are no other audiological test results of record from March 7, 2012. Accordingly, based on the mechanical application of the rating criteria to the test results, a 30 percent rating is warranted for this time frame. As mentioned above, the March 2012 VA audiologist found in June 2012 that the Veteran's ability to interact in more demanding listening situations such as group meetings, noisy situations or a room with poor acoustics would be compromised, particularly with speech directed to his left ear. She also found that with reasonable accommodation (e.g. hearing aids and an amplified phone, which the Veteran would have available to him), he would be able to have conversations with one or more people in a quiet environment; should be able to follow employer instructions and converse on the phone; and should be able to perform other job functions to his ability. Additionally, she found that the Veteran would be able to attend to activities of daily living (eating, dressing, bathing and ambulating) and drive a vehicle. This description of the functional effect of the Veteran's hearing loss was entirely adequate for rating purposes. Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). The evidence presents no basis for referral for consideration of an extra-schedular rating in this case. 38 C.F.R. § 3.321(b)(1). The applicable rating criteria discussed above specifically contemplate the Veteran's level of disability and symptomatology. He has not presented any evidence that his bilateral hearing loss results in a unique disability that is not addressed by these criteria. As noted above, the Veteran's bilateral hearing loss disability is manifested by, at worst, Level V hearing loss in the right ear and Level VI hearing loss in the left ear prior to March 7, 2012 and Level V hearing loss in the right ear and Level VIII hearing loss in the left ear from March 7, 2012. When comparing this disability picture with the symptoms contemplated by the Schedule, the Board finds that the Veteran's symptoms are adequately contemplated by the disability ratings assigned. Higher ratings are provided for certain manifestations of hearing loss, but the medical evidence reflects that those manifestations are not present in this case. The criteria for a 20 percent rating for the Veteran's bilateral hearing loss prior to March 7, 2012 and for a 30 percent rating thereafter more reasonably describe his disability level and symptomatology and, therefore, the currently assigned schedular evaluation is adequate. Thus, there is no basis for referral of the case for consideration of an extra-schedular disability evaluation. See Thun v. Peake, 22 Vet. App 111, 115-16 (2008); see also Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER Prior to March 7, 2012, a rating in excess of 20 percent for bilateral hearing loss disability is denied. From March 7, 2012, a rating in excess of 30 percent for bilateral hearing loss disability is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs