Citation Nr: 1303397	
Decision Date: 01/31/13    Archive Date: 02/05/13

DOCKET NO.  08-33 333	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

1.  Entitlement to service connection for a respiratory disorder, to include as due to asbestos exposure.

2.  Entitlement to a disability rating in excess of 40 percent for service-connected bilateral hearing loss disability.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

James Alsup, Counsel



INTRODUCTION

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).

The Veteran served on active duty from May 1944 to February 1946.

This matter comes before the Board on appeal from rating decisions of the Department of Veterans Appeals (VA) Regional Office (RO) in Louisville, Kentucky.  In an October 2007 rating decision, the RO denied the Veteran's claim for service connection for a respiratory disorder.  The Veteran perfected an appeal of that decision, and in May 2010 and April 2011, the Board remanded the claim for further development.

In a February 2010 rating decision, the RO increased the disability evaluation for service-connected bilateral hearing loss disability to 40 percent disabling.  The Veteran perfected an appeal of that decision and in February 2012, the Board, in part, remanded the Veteran's claim for further development.  Development has been completed and the claim has been returned for appellate consideration. 

The issue of service connection for a respiratory disorder, to include as due to exposure to asbestos is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The Veteran has demonstrated at worst Level VIII hearing acuity in the right ear and Level VII in the left ear.  


CONCLUSION OF LAW

The criteria for a disability rating in excess of 40 percent for service-connected bilateral hearing loss disability are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Stegall Considerations

As noted above, the Board remanded the Veteran's claim in February 2012.  In February 2012, the directed VA to obtain current VA treatment records and to provide the Veteran the opportunity to provide additional treatment records.  The Board also instructed VA to provide an examination requiring the examiner to describe the effect of the hearing loss disability on the Veteran's occupational functioning.  The examiner was also requested to state whether the Veteran needed assistance to carry on a conversation with health care providers.

The Veteran was notified in a February 2012 letter that he could submit additional medical evidence or identify such evidence so that VA could obtain it.  The record includes additional treatment records dated from February 2011, and the record includes an August 2012 VA examination report that states the current nature and extent of the Veteran's bilateral hearing loss and addresses the impact the Veteran's hearing loss has on his occupational functioning and ability to communicate with health care providers.  Thus, there is compliance with the Board's remand instructions.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).



Duties to Notify and Assist

Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012).  

The Veteran was informed in a January 2010 letter he needed to submit evidence that his hearing loss disability had gotten worse, and he was informed of how VA determines a disability rating and an effective date.  He was further told of the steps VA would take in assisting him to develop his claim by obtaining records and providing, if necessary, a medical examination.  The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of notices provided by the RO.  Shinseki v. Sanders, 556 U.S. 396 (2009).

The record shows that the RO has obtained the Veteran's service treatment records and VA treatment records.  The Veteran was provided VA audiological examinations in February and August 2010, and August 2012.  The VA examination reports reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate audiological evaluations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record.  

The Board recognizes that in Martinak v. Nicholson, 21 Vet. App. 447 (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.  See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2012).  The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow deficient, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  The Board specifically remanded this matter in February 2012 to obtain information about the effects of the Veteran's disability on his occupational functioning.  The August 2012 VA examiner noted that the Veteran's hearing loss disability made it difficult for him to understand speech in certain situations, "especially those with excessive background noise."  The examiner further reported that "when the [V]eteran is wearing his hearing aids he can communicate well in quiet settings," but that with background noise, "the [V]eteran will likely have more difficulty."  The examiner noted that "[w]ithout his hearing aids the [V]eteran should be able to communicate if the speaker is looking at him, speaking clearly, speaking loud enough and the room is quiet."  She concluded that the Veteran would typically speak to a health care provider in a quiet room where his hearing and understanding would be increased.  If the Veteran were in a room without his hearing aids and the provider was not facing the Veteran or had an accent, then the Veteran would have difficulty understanding him/her.  The impact of the hearing loss in the Veteran's own words was that "things are not loud enough" for him to understand.  Thus, as contemplated by Martinak and directed by 38 C.F.R. § 4.10, the VA examiner discussed the functional effects of the Veteran's hearing problems. 

Additionally, the Veteran has not stated nor is there evidence indicating that there has been a material change in the severity of his hearing since he was last examined in August 2012.  See 38 C.F.R. § 3.327(a) (2012).  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.  See VAOPGCPREC 11-95 (April 7, 1995).  

The Board concludes that the examination reports of record are adequate for purposes of rendering a decision in the instant appeal.  See 38 CF.R.§ 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Veteran and his representative have not contended otherwise.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  38 C.F.R. § 3.159(c) (4) (2012); Barr, 21 Vet. App. at 312

The Board additionally observes that all appropriate due process concerns have been satisfied.  See 38 C.F.R. § 3.103 (2012).  The Veteran has declined the opportunity to present testimony before a Veterans Law Judge.  Therefore, the duties to notify and assist have been met.   

Hearing Loss Disability

The Veteran essentially contends that his bilateral hearing loss disability is more disabling than contemplated by the current 40 percent evaluation.  

Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition.  Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7.

While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1 , where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  The Court has held that 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.

Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second.  The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness.  VA audiometric examinations are conducted using a controlled speech discrimination test (Maryland CNC) together with the results of a puretone audiometry test.  The vertical lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  The horizontal columns in Table VI represent nine categories of decibel (dB) loss based on the pure tone audiometry test.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone dB loss. 

The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity.  For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent.  38 C.F.R. 
§ 4.85. 

The provisions of 38 C.F.R. § 4.86(a) provide that when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, 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.  The provisions of 38 C.F.R. § 4.86(b) provide that when the puretone threshold is 30 dB or less at 1,000 hertz, and 70 dB or more at 2,000 hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results is the higher numeral.  That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 

The relevant medical evidence of record includes multiple VA examinations.  

The February 2010 VA audiologist reported the following puretone thresholds:  




HERTZ


1000
2000
3000
4000
RIGHT
55
70
75
85
LEFT
60
75
85
90

The average decibel loss for the right ear was 71.25 and the average decibel loss for the left ear was 78.75.  Speech audiometry revealed speech recognition ability of 60 percent in the right ear and 64 percent in the left ear.  

Applying these values to the rating criteria results in a numeric designation of level VII in the right ear and level VII in the left ear.  This results in a 40 percent disability rating under Table VII.  The examination results also demonstrate exceptional patterns of hearing impairment requiring consideration under 38 C.F.R. § 4.86.  Using Table VIa, the puretone threshold average results in a level VI for the right ear and a level VII for the left ear, which results in a 30 percent evaluation.  Thus, the higher results are achieved by applying 38 C.F.R. § 4.85.

The August 2010 VA audiologist reported the following puretone thresholds:  




HERTZ


1000
2000
3000
4000
RIGHT
65
75
85
95
LEFT
60
75
85
95

The average decibel loss for the right ear was 80 and the average decibel loss for the left ear was 78.75.  Speech audiometry revealed speech recognition ability of 70 percent in the right ear and 76 percent in the left ear.  

Applying these values to the rating criteria results in a numeric designation of level VI in the right ear and level V in the left ear.  This results in a 20 percent disability rating under Table VII.  As above, the examination results also demonstrate exceptional patterns of hearing impairment requiring consideration under 38 C.F.R. § 4.86.  Using Table VIa, the puretone threshold average results in a level VII for the right ear and a level VII for the left ear resulting in a 40 percent evaluation.  Thus, the higher results are achieved by applying 38 C.F.R. § 4.86.  

The August 2012 VA audiological examination report shows the following puretone thresholds:  




HERTZ


1000
2000
3000
4000
RIGHT
65
70
80
95
LEFT
65
75
80
95

The average decibel loss for the right ear was 78 and the average decibel loss for the left ear was 79.  Speech audiometry revealed speech recognition ability of 52 percent in the right ear and 68 percent in the left ear.  

Applying these values to the rating criteria results in a numeric designation of level VIII in the right ear and level VI in the left ear.  This results in a 40 percent disability rating under Table VII.  Again, the examination results demonstrate exceptional patterns of hearing impairment requiring consideration under 38 C.F.R. § 4.86.  Using Table VIa, the puretone threshold average results in a level VII for the right ear and a level VII for the left ear, resulting in a 40 percent disability rating.  


Based on the evidence of record, the Veteran's hearing loss disability did not meet the criteria for an evaluation in excess of 40 percent at any time during the appeal period.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  

To the extent that the Veteran contends that his hearing loss is more severe than contemplated by the current evaluation, the Board observes that the Veteran, while competent to report symptoms, such as difficulty hearing, is not competent to report that his hearing acuity is sufficient to warrant higher evaluations under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise which the Veteran 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); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95   (1992). 

It is important to note that the results of the VA audiometric testing do not signify the absence of a significant disability associated with the Veteran's hearing loss disability.  However, the degree to which this disability affects the average impairment of earnings, according to the Rating Schedule, results in no more than a 40 percent evaluation.  See Id. ; 38 U.S.C.A. § 1155.  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 Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  As such, an increased evaluation is not warranted in this case.  

Extraschedular Considerations

The Board has also considered whether the Veteran is entitled to a greater level of compensation on an extraschedular 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).

According to the regulation, 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).  An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards.  See Fanning v. Brown, 4 Vet. App. 225, 229 (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 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 evaluations for the service-connected hearing loss disability is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's hearing loss disability with the established criteria shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology.  The August 2012 examiner noted that the Veteran's hearing loss disability made it difficult for him to understand speech in loud settings, and without his hearing aids he was able to communicate if the speaker was looking at him, speaking clearly, speaking loud enough and the room was quiet.  The Veteran has essentially asserted that "things are not loud enough" for him to understand.


The Board notes 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 support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86.  In this regard, the rating criteria for hearing loss 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.  Accordingly, the Board determines that the Veteran's complaints of hearing difficulty have been considered under the numerical criteria set forth in the rating schedule. 

In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology.  The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.

Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki,  22 Vet. App. 447 (2009).  In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating.  In this case, the Veteran has not argued, and the record does not otherwise reflect, that his hearing loss disability renders him totally unemployable.  In fact, the August 2012 VA examiner specifically indicated that the Veteran's hearing loss disability did not render him unemployable.  Accordingly, the Board concludes that a claim for TDIU has not been raised.


ORDER

Entitlement to a disability rating in excess of 40 percent for service-connected bilateral hearing loss disability is denied.


REMAND

The Veteran seeks service connection for a respiratory disorder.   In April 2011, the Board remanded this matter for the RO/AMC to provide a supplement to the July 2010 examination report by providing rationale regarding the findings of the examiner, and to readjudicate the Veteran's claim.  Although the Veteran's claims folder and electronic file contain a copy of  the August 2011 addendum report, there is no indication that the RO/AMC has readjudicated the claim as there is no supplemental statement of the case (SSOC) of record.  The claim is thus remanded for the agency of original jurisdiction (AOJ) to readjudicate the claim based on the all of the evidence of record since the claim was last adjudicated.   See 38 C.F.R. § 20.1304 (2012).


Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

Readjudicate the Veteran's claim for service connection for a respiratory disorder, to include as due to exposure to asbestos, considering all of the evidence of record since the claim was last adjudicated.  If the claim remains denied, issue an appropriate SSOC and give the Veteran and his representative the opportunity to respond.  The case should then be returned to the Board, if in order, for further review.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
LANA K. JENG
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs