Citation Nr: 1301933 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 10-39 073 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1960 to May 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that granted entitlement to service connection for a bilateral hearing loss disability and assigned a 10 percent evaluation as of September 26, 2008. The Veteran was scheduled for a Board hearing in September 2011; however the Veteran did not report for this hearing. As the Veteran has not offered a statement of good cause as to why he missed the hearing, the Board will proceed as if the hearing request had been withdrawn. 38 C.F.R. § 20.702(d) (2012). 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. From September 26, 2008 to August 29, 2010 the Veteran's audiometric examination report corresponds to no more than a level III for the right ear and a level IV for the left ear. 2. As of August 30, 2010 the Veteran's audiometric examination report corresponds to no more than a level VII for the right ear and a level IX for the left ear. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent for a bilateral hearing loss disability prior to August 30, 2010 have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2012). 2. The criteria for an evaluation of 50 percent, but no higher, for a bilateral hearing loss disability have been met as of August 30, 2010. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (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. See 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. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties 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). Prior to the initial rating decision in this matter, an October 2008 letter informed the Veteran of all five elements of service connection, gave examples of the types of evidence the Veteran could submit in support of his claim, and provided notice of the Veteran's and VA's respective responsibilities for obtaining such evidence. Therefore, the duty to notify has been satisfied. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Goodwin v. Peake, 22 Vet. App. 128, 136 (2008) ((holding that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service- connection claim has been proven and thus section 5103(a) notice is no longer required because the purpose that the notice is intended to serve has been fulfilled)). The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was done in this case. The Veteran's service treatment records and VA treatment records are in the file. The VA has also obtained private treatment records and associated them with the claims file. The Veteran has not indicated that there are any additional outstanding records to be obtained. The duty to assist with obtaining medical records has been satisfied. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. 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. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). The Veteran was afforded a VA medical examination most recently in August 2010 to determine the severity of his bilateral hearing loss disability. This opinion was rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file. The examiner obtained an accurate history. The examiner provided a detailed explanation for her conclusions. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorder since he was last examined. 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. VAOPGCPREC 11-95. Therefore, the Board finds that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). All relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Increased Rating Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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). In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran contends that his bilateral hearing loss disability should be awarded a higher evaluation. For the reasons discussed below, the Board finds that as of August 30, 2010 a higher evaluation is warranted. The Veteran's service-connected bilateral hearing loss disability has been assigned an initial 10 percent evaluation by the RO under the provisions of Diagnostic Code 6100. See 38 C.F.R. § 4.85. The ratings schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations of hearing impairment in both ears. Id. When the pure tone 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). Additionally when the pure tone 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). The Veteran was given an audiogram at a December 2008 VA medical appointment. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVERAGE LEFT 50 70 80 85 71.25 RIGHT 40 55 70 75 60 The Maryland CNC test for speech discrimination was not performed. The Veteran was afforded a VA examination in April 2009. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVERAGE LEFT 50 60 70 85 66.25 RIGHT 40 60 80 85 66.25 Speech audiometry revealed speech recognition ability of 76 percent in the left ear and 85 percent in the right ear. The Veteran provided the results of a private January 2010 audiogram. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVERAGE LEFT 60 80 85 100 81.25 RIGHT 50 65 85 90 72.5 Although the examiner discussed speech recognition testing, the column for speech discrimination testing was left blank. Speech discrimination testing, specifically the Maryland CNC test, is required for the VA to use an audiogram for evaluation purposes. 38 C.F.R. § 4.85. As there is no evidence this was performed at the January 2010 examination, the audiogram is not valid for evaluation purposes. Using the April 2009 VA examination report and entering the average pure tone threshold and speech recognition ability into Table VI reveals the highest numeric designation of hearing impairment for the left ear is IV and for the right ear is a III. 38 C.F.R. § 4.85. Entering both the category designations for each ear into Table VII results in a 10 percent disability rating under Diagnostic Code 6100. The Veteran was afforded a VA examination in August 2010. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVERAGE LEFT 65 90 110 105 92.5 RIGHT 60 70 85 105 80 Speech audiometry revealed speech recognition ability of 60 percent in the left ear and 72 percent in the right ear. The examiner stated the Veteran's results were inconsistent with poor reliability. The examiner instructed the Veteran 4 times on his inconsistencies with no change in consistency or reliability. Through his representative, the Veteran argued that this statement was conclusory and not supported by an explanation. See December 2012 Brief. The Veteran also argues the August 2010 results were reliable because the test results were similar to the January 2010 private audiogram. Id. At his August 2010 VA examination the Veteran had puretone thresholds of 55 decibels or more at the 1000, 2000, 3000, and 4000 Hertz levels of each ear and as such, the Board will use either Table VI or Table VIa, whichever results in the higher Roman numeral designation. 38 C.F.R. § 4.86. Using the August 2010 VA examination report and entering the average pure tone threshold and speech recognition ability into Table VIA reveals the highest numeric designation of hearing impairment for the left ear is IX and for the right ear is a VII. As Table VI revealed the highest numeric designation of hearing impairment for the left ear is VIII and for the right ear is a VI, Table VIA will be used for evaluation purposes. Entering both the category designations for each ear into Table VII results in a 50 percent disability rating under Diagnostic Code 6100. In Martinak v. Nicholson, 21 Vet. App. 447, 455 (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. While not argued by the Veteran, the April 2009 and August 2010 VA examination reports document the Veteran's complaints of difficulty hearing. The April 2009 report specifically noted the Veteran's complaints of difficulty understanding conversational speech and the August 2010 VA examiner noted the Veteran's complaints of difficulty hearing over the telephone or television and in normal conversations. The Board has considered the Veteran's statements that his bilateral hearing loss disability warrants a higher evaluation. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment. Furthermore, the opinions and observations of the Veteran alone are not sufficient to address the rating criteria under 38 C.F.R. § 4.85, Diagnostic Code 6100 with respect to determining the severity of his service-connected bilateral hearing loss disability. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); see also 38 C.F.R. § 3.159(a)(1) and (2). In sum, there is no probative audiological evidence of record to support an evaluation in excess of 10 percent prior to August 30, 2010 and in excess of 50 percent thereafter for a bilateral hearing loss disability. The Veteran's responses to the August 2010 VA examiner's questions appear to be uncertain to gauge his bilateral hearing loss disability. However, as noted by the Veteran's representative, the results from his January 2010 private audiogram also indicated that his hearing loss disability had worsened since the April 2009 VA examination. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim, but such would not materially assist the Board in this determination. Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet.App. 52 (1993); see also Massey v. Brown, 7 Vet.App. 204 (1994). The Board will therefore resolve reasonable doubt in favor of the Veteran, and in part grant an increased rating. 38 U.S.C.A. § 5107 (West 2002). Extraschedular Consideration The Board has considered whether referral for an extraschedular rating is appropriate under the provisions of 38 C.F.R. § 3.321(b)(1). An extraschedular disability rating is warranted based 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) (2012). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant'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. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). As described above, the manifestations of the Veteran's bilateral hearing loss disability are contemplated by the schedular criteria set forth in Diagnostic Code 6100; no examiner has reported an exceptional disability picture with symptoms not represented in the rating schedule. His subjective symptoms of problems hearing the television, telephone, and conversational speech are accurately described but the rating criteria. The record does not show that the Veteran has required frequent hospitalizations for his bilateral hearing loss disability. Additionally, there is not shown to be evidence of marked interference with employment due to his bilateral hearing loss disability. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating. Accordingly, the Board has determined that referral of this case for extraschedular consideration is not in order. ORDER Entitlement to an evaluation in excess of 10 percent prior to August 30, 2010 for a bilateral hearing loss disability is denied. Entitlement to an evaluation of 50 percent, but no higher, for the Veteran's bilateral hearing loss disability is granted, effective August 30, 2010, subject to the applicable regulatory provisions governing payment of monetary awards. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs