Citation Nr: 1301929 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 11-14 390 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an initial compensable evaluation for bilateral sensorineural hearing loss prior to September 20, 2012, and an evaluation in excess of 20 percent thereafter. ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from December 1945 to June 1947. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office in Milwaukee, Wisconsin (RO). In pertinent part of that rating decision, the RO awarded entitlement to service connection for bilateral sensorineural hearing loss and assigned a noncompensable evaluation, effective from March 22, 2010. By the way of an October 2012 rating decision, the RO increased the assigned evaluation for bilateral sensorineural hearing loss disability to 20 percent disabling, effective from September 20, 2012, the date of a VA examination. The increased rating claim remains in controversy as the rating remains less than the maximum available schedular benefit awardable. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 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. For the period prior to September 20, 2012, the Veteran's bilateral sensorineural hearing loss is shown to be manifested by no more than a pure-tone average of 64 decibels with 84 percent speech discrimination (Level III) in the right ear, and a pure-tone average of 44 decibels with 80 percent speech discrimination (Level III) in the left ear, and difficulty hearing conversations. 2. Beginning September 20, 2012, the date of a VA audiology examination, the Veteran's bilateral sensorineural hearing loss is shown to be manifested by no more a pure-tone average of 70 decibels with 80 percent speech discrimination (Level IV) in the right ear, and a pure-tone average of 52 decibels with 62 percent speech discrimination (Level VI) in the left ear, and difficulty hearing conversations even with the assistance of his hearing aids. CONCLUSION OF LAW The criteria for a compensable disability rating prior to September 20, 2012, and an evaluation in excess of 20 percent since then, have not been met for the Veteran's bilateral sensorineural bilateral hearing loss. 38 U.S.C.A. § 1155 (West 2002 and Supplement 2012); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2012) REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the appellant. See Gonzales v. West, 218 F.3d 1378, 1380-81 (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 appellant must 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). 1. VA's Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs has a 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). Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim, as well as what parts of that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). Importantly, the VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom., Hartman v. Nicholson, 483 F.3d 1311 (2007). VA sent a letter to the Veteran in December 2007 that addressed the notice elements concerning his claim. The letters informed the Veteran of what evidence is required to substantiate the claim, and apprised the Veteran as to his and VA's respective duties for obtaining evidence. VA also informed the Veteran how it determines the disability rating and the effective date for the award of benefits if service connection is to be awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. In addition to its duty to notify, or inform, the Veteran with regard to his claim, VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and records of pertinent medical treatment since service, and providing the Veteran a medical examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, VA has made reasonable efforts to obtain any available pertinent records as well as all relevant records adequately identified by the Veteran. VA provided the Veteran with audiology examinations in May 2010 and September 2012, in which the examiners identified the nature and severity of the Veteran's disability, and the examiners reported the audiogram results. Both VA examination reports contain notation on the functional affect of the Veteran's bilateral sensorineural hearing loss. See Martinak v. Nicholson, 21 Vet. App. 447, 454-55. The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. See Bernard v. Brown, 4 Vet. App. 384 (1993). For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and its duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159(b), 20.1102; Pelegrini, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002). 2. Initial Increased Rating Claim Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (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). Here, as discussed further below, the severity of the Veteran's symptomatology due to his disability has increased during the period under appeal. Thus, currently assigned staged ratings are warranted in this case. It is not expected that all cases will show all the findings specified; however, in all instances it is expected that there will be sufficient findings as to identify the disease and the disability there from, and to coordinate the rating with the identified impairment of function. 38 C.F.R. § 4.21. Where there is a question as to which of two rating 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. 38 C.F.R. § 4.7. The Veteran claims entitlement to a compensable disability rating for his bilateral hearing loss. 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 rating purpose (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on testing (by a state-licensed audiologist), including pure-tone threshold average and speech discrimination (Maryland CNC test). 38 C.F.R. § 4.85 (b). In circumstances where an examiner certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing impairment as defined under 38 C.F.R. § 4.86, then Table VIa will be used to determine the Roman numeral designations (I through XI) for hearing impairment based only on pure-tone threshold average. 38 C.F.R. § 4.85(c). One exceptional pattern of hearing impairment occurs when the pure-tone thresholds in each of the four frequencies (1K to 4K Hertz) are 55 decibels or greater. Another occurs where the pure-tone threshold at 1K Hertz is 30 decibels or less, and the threshold at 2K Hertz is 70 decibels or more. 38 C.F.R. § 4.86(a), (b). Once the Veteran's hearing impairment is determined by the numeral designations according to Table VI or VIa, then Table VII is used to determine the rating assigned by combining the Roman numeral designation for hearing impairment of each ear. The percentage evaluation is found on Table VII by intersecting the horizontal row appropriate for the numeric designation for the ear with the better hearing and the vertical column appropriate to the numeric designation level for the ear with the poorer hearing. 38 C.F.R. § 4.85(e). Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designation assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). In determining the appropriate rating for the Veteran's hearing impairment, however, VA must also consider whether an extra-schedular evaluation under 38 C.F.R. § 3.321(b) should be assigned in the case where the disability affects on the Veteran's occupational function and daily activities. See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). Prior to September 20, 2012 The Veteran asserts entitlement to a compensable evaluation for bilateral sensorineural hearing loss prior to September 20, 2012. Prior to September 20, 2012, the Veteran's hearing impairment is determined by medical findings that are recorded in a May 2010 VA audiological examination. The audiometric findings in the May 2010 examination report revealed pure-tone thresholds at 1,000, 2,000, 3,000 and 4,000 Hertz, were as follows: 40, 45, 100, 80, and 64 decibels in the right ear; and 15, 35, 60, and 65 decibels in the left ear. Pure-tone threshold averages were 64 in the right ear and 44 in the left ear. Speech recognition testing revealed speech recognition abilities were 84 percent in the right ear and 80 percent in the left ear. The March 2005 VA examiner noted that Veteran complained that he has difficulty hearing others when they are speaking on his right side. Initially, the Board observes that the May 2010 audiometric findings do not demonstrate that the Veteran has an exceptional pattern of hearing impairment. He has neither pure tone thresholds greater than 55 decibels at each of the 1000, 2000, 3000, nor 4000 Hz levels, nor a pure tone threshold at 1000 Hz of 30 decibels or less coupled with a pure tone threshold at 2000 Hz of 70 decibels or more. See 38 C.F.R. § 4.86. As such, Table VI will be used to determine the severity of the Veteran's hearing impairment. When applying the 38 C.F.R. § 4.85, Table VI, to the Veteran's hearing loss scores, the findings from the May 2010 examination show that his right ear qualified as Level III (pure tone threshold average of 64 decibels, speech recognition score of 84 percent), and his left ear qualified as Level III (pure tone threshold average of 44 decibels, speech recognition score of 80 percent). The application of these levels under Table VII warrants a non-compensable rating for hearing loss. See 38 C.F.R. § 4.85(e). There is no objective evidence that he meets the criteria for a compensable rating. The May 2010 VA examination report contains only audiometric evaluation of record during the appeal period that is prior to September 20, 2012. Based on the findings shown in the May 2010 VA examination report, the Board finds that the mechanical application of the applicable diagnostic criteria to the evidence in the record warrants a non-compensable disability rating prior to September 20, 2012. See 38 C.F.R. §§ 4.85(c) and 4.86(a). Since September 20, 2012 The report of a September 2012 VA audiological examination shows the severity of the disability due to the Veteran's bilateral sensorineural hearing loss has increased. The audiometric findings in the September 2012 examination report revealed pure-tone thresholds at 1,000, 2,000, 3,000 and 4,000 Hertz, were as follows: 40, 55, 95, and 90 decibels in the right ear; and 25, 50, 65, and 70 decibels in the left ear. Pure-tone threshold averages were 70 in the right ear and 52 in the left ear. The examiner noted that diagnostic testing revealed valid pure-tone threshold results. Speech recognition testing revealed speech recognition abilities were 80 percent in the right ear and 62 percent in the left ear. The June 2009 VA examiner diagnosed the Veteran with mixed sensorineural hearing loss in the right ear and with sensorineural hearing loss in the left ear. The examiner noted that the Veteran's disability causes him functional impairment due to difficulty hearing and understanding speech when people are not facing him, despite the use of hearing aids. The audiometric findings from the September 2012 VA examination do not demonstrate that the Veteran has an exceptional pattern of hearing impairment. He has neither pure tone thresholds greater than 55 decibels at each of the 1000, 2000, 3000, nor 4000 Hz levels, nor a pure tone threshold at 1000 Hz of 30 decibels or less coupled with a pure tone threshold at 2000 Hz of 70 decibels or more. See 38 C.F.R. § 4.86. Again, Table VI will be used to determine the severity of the Veteran's hearing impairment since September 20, 2012. When applying the 38 C.F.R. § 4.85, Table VI, to the Veteran's hearing loss scores, the findings from the September 2012 examination show that his right ear qualified as Level IV (pure tone threshold average of 70 decibels, speech recognition score of 80 percent), and his left ear qualified as Level VI (pure tone threshold average of 52 decibels, speech recognition score of 62 percent). Considering 38 C.F.R. § 4.85, Table VII, the Veteran does not meet the criteria for an evaluation in excess of 20 percent, as the evaluation indicated at the intersection of the columns for Level IV for the right ear and for Level IV for the left ear is 20 percent. At no point does the evidence of record since the date of the September 2012 VA examination report show that an evaluation in excess of 20 percent is warranted for bilateral sensorineural hearing loss. See 38 C.F.R. § 4.85, Diagnostic Code 6100. The evidence of record does not support a higher evaluation since the date of the September 2012 VA examination. As such, the preponderance of the evidence is against the Veteran's claim of entitlement to an evaluation in excess of 20 percent for his service connected bilateral hearing loss from September 20, 2012. In short, the preponderance of the evidence is against a finding that the Veteran's for the bilateral sensorineural hearing loss disability warrants a compensable evaluation prior to September 20, 2012, and thereafter in excess of 20 percent. Although the Veteran asserts that his hearing is more severe than the criteria associated with a noncompensable evaluation prior to September 20, 2012, and thereafter in excess of 20 percent evaluation, the rating criteria for hearing loss, as addressed above, requires the mechanical application of rating criteria to objectively-obtained audiometric testing results. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The current staged noncompensable evaluation prior to September 20, 2012, and the 20 percent evaluation thereafter are reflected by the medical evidence on record. The Veteran has not asserted and there is no indication that the findings from either of the VA examination reports are inadequate. As noted above, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In doing so, the Board must consider the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). While the Veteran contends that his hearing impairment makes it difficult for him to hear people talking, he has not asserted any significant impact from his hearing impairment on his ability to work. See September 2012 VA Audiology Examination report. Based on the above, the Board finds that the Veteran's claim for a compensable evaluation prior to September 20, 2012, and an evaluation in excess of 20 percent thereafter for bilateral sensorineural hearing loss disability cannot be granted. The Board notes that in reaching these conclusions, the benefit of the doubt doctrine has been applied to resolve the matters on appeal in a manner favorable to the Veteran. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular Considerations The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the Veteran'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 extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). 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 disability at issue is inadequate. A comparison between the level of severity and symptomatology of the Veteran's hearing loss with the established criteria shows that the rating criteria reasonably describe the disability levels and symptomatology attributable to the Veteran's service-connected hearing loss. In reaching this conclusion, the Board considered that the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability. In this regard, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86, which were last revised, effective June 10, 1999. See 64 Fed. Reg. 25206 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17295 (April 12, 1994). Accordingly, the Board finds that functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria. Therefore, the Veteran's struggle to comprehend verbal conversations is a factor contemplated in the regulations and rating criteria as defined. The simple fact that the Veteran's hearing disability does not satisfy the numerical criteria for a compensable rating prior to September 20, 2012, and thereafter in excess of 20 percent disabling, under these criteria, to include the criteria specifically designed for the type of real-world impairment experienced by the Veteran, does not place his symptomatology outside of that contemplated by the rating schedule or make application of the rating schedule impracticable in this case. In short, there is nothing in the record to indicate that the service-connected disability on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). 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 evaluation prior to September 20, 2012, and an evaluation in excess of 20 percent since then, for bilateral sensorineural hearing loss are denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs