Citation Nr: 1301497	
Decision Date: 01/14/13    Archive Date: 01/23/13

DOCKET NO.  12-04 309	)	DATE
	)
	)

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


THE ISSUE

Entitlement to a compensable disability rating for bilateral hearing loss.  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

M. Tenner, Counsel


INTRODUCTION

The Veteran served on active duty from January 1955 to January 1959.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 decision rendered by the Houston, Texas Regional Office (RO) of the Department of Veterans Affairs (VA).  

In October 2012, the Board remanded this matter to the RO, via VA's Appeals Management Center (AMC).  In November 2012, after substantial completion of the requested development, the AMC issued a Supplemental Statement of the Case and returned the matter to the Board.   

The following determination is based on review of the Veteran's claims file in addition to his Virtual VA " eFolder ."

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

Bilateral hearing loss is manifested by Level II hearing acuity in the right ear and Level I hearing acuity in the left ear.  


CONCLUSION OF LAW

The criteria for a compensable disability evaluation for bilateral hearing loss have not been met.  38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.16, 4.85, Diagnostic Code 6100 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. The Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (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 claims.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); 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 (the Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.

Here, an August 2010 letter from the RO satisfied these criteria.  In the letter, the RO advised the Veteran of the basic criteria for increased rating claims and explained VA's duties to assist him in obtaining evidence relevant to the claim.  
 
The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records are in the file.  He identified relevant VA and private treatment records and they have been obtained.  He has not 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) (2012).  The Veteran underwent a VA contract examination in January 2011.  

Concerning this examination, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Here, January 2011 report of the examination reflects that the examiner reviewed the Veteran's medical history, recorded his current complaints, conducted an appropriate examination, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record.  In addition, the audiological examiner described the effects of the hearing loss disability on the Veteran's ordinary activities of daily life.  See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  

There is no indication that the hearing loss disability worsened since the January 2011 examination.  The Board therefore concludes that the examination is adequate for rating purposes.  See 38 C.F.R. § 4.2 (2012).  

Finally, there has been substantial compliance with the Board's October 2012 remand directive.  Stegall v. West, 11 Vet. App. 268 (1998).  The RO/AMC obtained VA outpatient treatment records and contacted the Veteran and the Social Security Administration (SSA) to determine whether there were any outstanding SSA records.  The Veteran denied applying for SSA benefits and SSA determined there were no records of a claim or other medical evidence.  

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 Mayfield, supra.

II.  Analysis 

The Veteran contends that a 10 percent or higher rating is warranted for service-connected bilateral hearing loss.  In particular, he describes difficulty hearing when background noises are present and states that he has to face people to understand them.  He states that he wears hearing aids in both ears.   

Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities.  Ratings are based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Further, the Board must evaluate the medical evidence of record since the filing of the claim and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts).  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  

The Veteran's entire history is reviewed when making disability evaluations.  See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Because this appeal has been ongoing for a lengthy period, and because the level of a Veteran's disability may fluctuate over time, the VA is required to consider the level of the Veteran's impairment throughout the entire period.  In this respect, staged ratings are a sensible mechanism for allowing the assignment of the most precise disability rating-one that accounts for the possible dynamic nature of a disability while the claim works its way through the adjudication process.  O'Connell v. Nicholson, 21 Vet. App. 89 (2007).

Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Bruce v. West, 11 Vet. App. 405, 409 (1998), quoting Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  The criteria for rating hearing loss disability establish eleven auditory acuity levels designated from I to XI.  Tables VI and VII as set forth in the regulations are used to calculate the rating to be assigned.  38 C.F.R. § 4.85 (2012).  In instances where, because of language difficulties, the Chief of the Audiology Clinic or other examiner certifies that the use of both puretone averages and speech discrimination scores is inappropriate, Table VIa is to be used to assign a rating based on puretone averages.  38 C.F.R. § 4.85(c) (2012).  

When the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral.  38 C.F.R. § 4.86(a) (2012).  Additionally, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral.  Thereafter, that numeral will be elevated to the next higher numeral.  38 C.F.R. § 4.86(b) (2012).  

Here, the Veteran submitted a private audiogram dated in March 2003.  This audiogram precedes the initiation of the current claim by several years and may not be used to rate the current severity of the hearing loss disability.  The Veteran also contends that VA examinations conducted in 2005 and 2011 are inadequate because they showed similar findings.  The 2005 VA examination precedes the initiation of the current claim for increase.  Moreover, there is no indication, however, that the 2011 VA examination results are inadequate.  That examination was conducted by a licensed audiologist and includes a detailed description of the current hearing loss disability.  

During the January 2011 VA examination, the Veteran reported difficulty understanding conversations, particularly when not face to face with a speaker or when over the telephone.  He did not describe any occupational impairment.  Rather, the record indicates that he retired from employment many years ago.  

Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
40
40
45
65
LEFT
25
30
30
65
70

Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 100 percent in the left ear.  

Here, the Veteran has a puretone threshold average of 48 in the right ear and 47 in the left ear.  This is calculated by adding the puretone thresholds at 1000, 2000, 3000, and 4000 hertz and then dividing by four.  The Roman numeral designation for the right ear is II and the left ear is I.  The application of the Rating Schedule warrants a noncompensable evaluation under Diagnostic Code 6100.  These results do not provide a basis for assigning a rating greater than that assigned by the RO.  There is also no basis for applying the special provisions of 4.86.

In addition, records from the VA community based outpatient clinic dated in February and July 2011 are of record.  A February 2011 record includes an audiogram.  The results of the audiologic evaluation are in graphical form.  In this regard, the Board observes that in Kelly v. Brown, 7 Vet. App. 471 (1995), the Court determined that it could not interpret the results of an audiograph because interpretation required a factual finding, which is not the role of the Court in the first instance.  However, the Board, as the finder of fact, is empowered to make factual findings in the first instance.  The results, however, are not significantly different from those obtained during the January 2011 examination, one month earlier.  Moreover, they do not include Maryland CNC speech discrimination scores.  Thus, they do not support the claim for a compensable disability rating.  

The July 2011 VA record included the Veteran's statements as to the effect of the hearing loss disability on his activities of daily living.  He reported using hearing aids 1 to 4 hours a day.  He noted that they improved his enjoyment of life.  This record does not support the application for a compensable disability rating.  

To the extent that the Veteran contends that his hearing loss is more severe than currently evaluated, the Board observes that the Veteran, while competent to report symptoms such as difficulty hearing on the telephone, is not competent to report that his hearing acuity is of sufficient severity to warrant a 10 percent or greater evaluation under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment) which he has not been shown to have.  See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002).  Even after considering the Veteran's contentions as to the effects of the disability on his daily life, the Board finds that the criteria for an initial 10 percent rating or higher are not met.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992) (assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered).  

Finally, the Board has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis.  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).  

Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected bilateral hearing loss disability is inadequate.  A comparison between the level of severity and symptomatology of the hearing loss disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology.  The Veteran has not described any unusual features associated with his hearing loss disability.  The Board finds that the evidence does not demonstrate an exceptional or unusual clinical picture beyond that contemplated by the rating criteria.  The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.   


ORDER

A compensable disability rating for bilateral hearing loss is denied.  



____________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs