Citation Nr: 1304306	
Decision Date: 02/06/13    Archive Date: 02/19/13

DOCKET NO.  11-29 375	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an initial compensable rating for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Shauna M. Watkins, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the military from March 1947 to September 1948 and from August 1950 to July 1951.

This appeal to the Board of Veterans' Appeals (Board) is from a December 2010 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted the Veteran's claim for service connection for bilateral hearing loss and assigned an initial 0 percent rating, retroactively effective from April 19, 2010.  The Veteran appealed for a higher initial rating.  See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).

The Veteran initially requested a Travel Board hearing, but subsequently withdrew this request in writing in January 2012.  38 C.F.R. § 20.704(e) (2012).

In April 2012, the Board remanded this appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development.  The case has now been returned to the Board for appellate disposition.

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).


FINDING OF FACT

Throughout his appeal, the Veteran's bilateral hearing loss has been manifested by Level I hearing in both ears.


CONCLUSION OF LAW

The criteria for a compensable disability rating for the Veteran's service-connected bilateral hearing loss are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 
§§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 (2012).


REASONS AND BASES FOR FINDING 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, the evidence submitted by the Veteran or on his behalf.  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 Veteran 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).  

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Notice and Assistance

Under applicable law, VA 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant 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.  This notice must be provided prior to an initial unfavorable decision on a claim by the Agency of Original Jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The Board finds that the content requirements of a duty to assist notice letter have been fully satisfied.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  A letter from the RO dated in July 2010 provided the Veteran with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf.  The letter also provided the Veteran with information concerning the evaluation and effective date that could be assigned should service connection be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006).  This letter was provided prior to the initial RO adjudication of his claim.  Thus, the Board finds that VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed.

The Veteran has been awarded an initial grant of service connection for hearing loss, and he seeks a compensable initial evaluation for that disability.  In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held 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 more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Id. at 490-91.  Thus, because the notice that was provided was sufficient to support a grant of the claim for service connection, that notice is legally sufficient, and VA's duty to notify in this case has been satisfied.  

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 (STRs) and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained.  His STRs and post-service VA and private treatment records have been obtained.  The claims file does not contain any evidence indicating that the Veteran is currently receiving or has applied for disability benefits from the Social Security Administration (SSA); therefore, the Board does not need to make an attempt to obtain these records.  The Veteran's Virtual VA claims file was also reviewed in preparing this decision.  The Board does not have notice of any additional relevant evidence that is available but has not been obtained.  

The Veteran has also been afforded a VA examination for his claim.  The record is adequate and the need for a more contemporaneous examination occurs only when the evidence indicates the current rating may be incorrect.  38 C.F.R. § 3.327(a) (2012).  Here, the most recent VA compensation examination of the Veteran's bilateral hearing loss was in December 2010.  The report of that evaluation contains all findings needed to properly evaluate his disability.  38 C.F.R. § 4.2 (2012).  The evidence of record does not suggest that the Veteran's bilateral hearing loss has worsened.  Consequently, another examination to evaluate the severity of this disability is not warranted because there is sufficient evidence already of record to fairly decide this claim insofar as assessing the severity of the disability.  See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); Allday v. Brown, 7 Vet. App. 517, 526 (1995). 

With regard to the VA examination of record, the Board calls attention to Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  In Martinak, the Court held that relevant to VA audiological examinations, 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.  Id.  In this regard, the December 2010 VA examiner specifically noted the Veteran's complaints that he has difficulty hearing in his occupational activities, but not in his usual daily activities.  The Board finds this statement adequately describes the functional effects of the Veteran's disability, as it demonstrates that the VA examiner elicited information from the Veteran about the effects of his disability.  Martinak, 21 Vet. App. at 455.

In this regard, the Board notes that the Court's rationale in requiring an examiner to consider the functional effects of a Veteran's hearing loss disability involves the potential application of 38 C.F.R. § 3.321(b) in considering whether referral for an extraschedular rating is warranted.  Specifically, the Court noted that, "unlike the rating schedule for hearing loss, 38 C.F.R. § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extraschedular rating is warranted.  The VA Secretary's policy [requiring VA audiologists to describe the effect of a hearing disability on a Veteran's occupational functioning and daily activities] facilitates such determinations by requiring VA audiologists to provide information in anticipation of its possible application."  Id.  Therefore, the VA examination is not defective under Martinak.  21 Vet. App. at 455.    

For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim.  Therefore, no further assistance to the Veteran with the development of evidence is required.

The Board is also satisfied as to substantial compliance with its April 2012 remand directives.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998).  This included contacting HearUSA, a private medical provider, to determine whether the Maryland CNC test was used in the July 2010 audiological examination and whether that test was conducted by a state-licensed audiologist.  This action was accomplished in a December 2012 phone conversation between the AMC and HearUSA.  The remand also included obtaining a VA medical opinion to interpret and reconcile the July 2010 private audiological findings with the December 2010 VA examination.  This VA medical opinion was obtained in November 2012.  Finally, the Remand included readjudicating the Veteran's claim, which was accomplished in the December 2012 Supplemental Statement of the Case (SSOC).  Thus, there has been substantial compliance with the Board's remand directives.  Id.

Increased Rating

Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity in civil occupations.  See 38 U.S.C.A. § 1155.  Separate DCs identify the various disabilities.  The assignment of a particular DC is dependent on the facts of a particular case.  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One DC may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology.  In reviewing the claim for a higher rating, the Board must consider which DC or codes are most appropriate for application in the Veteran's case and provide an explanation for the conclusion.  See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).

At the outset, the Board observes that the Veteran expressed his timely disagreement with the December 2010 rating decision that granted him service connection for his bilateral hearing loss.  As such, the Veteran appealed the initial evaluation assigned and the severity of his disability is to be considered during the entire period from the initial assignment of the disability rating to the present.  See Fenderson v. West, 12 Vet. App. 119 (1999).

Disability ratings for hearing impairment are to be derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).  VA regulations require that an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test.  38 C.F.R. § 4.85.

The Rating Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state- licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  38 C.F.R. § 4.85.  Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  Id.



38 C.F.R. § 4.85.

Furthermore, additional considerations apply in cases of exceptional patterns of hearing impairment.  Under the provisions of 38 C.F.R. § 4.86(a), when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz (Hz)) 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.  This provision does not apply in this case, since the Veteran has puretone thresholds below 55 decibels as some tested frequencies, and further discussion of 38 C.F.R. § 4.86(a) is not required.

Facts and analysis

The Veteran is currently in receipt of a noncompensable (0-percent) evaluation for his bilateral hearing loss under DC 6100.  38 C.F.R. §§ 4.85, 4.86.

In December 2010, the Veteran was provided a VA audiological examination.  The examination revealed the following puretone thresholds, in decibels:



HERTZ




1000
2000
3000
4000
Average
LEFT
30
45
65
80
55
RIGHT
35
40
55
75
51

Using the Maryland CNC test, the speech recognition score for the right ear was 98 percent and the speech recognition score for the left ear was 98 percent.  The mechanical application of the above test results compels a numeric designation of Level I in the right ear and Level I in the left ear.  These results do not warrant the application of Table VIa under 38 C.F.R. § 4.86(a).  Consequently, the values from Table VI are used.  Under Table VI (38 C.F.R. § 4.85), the designation of Level I hearing in each ear requires the assignment of a 0-percent evaluation under DC 6100.  

The Board observes that the Veteran submitted a July 2010 private audiological treatment record from HearUSA in support of his claim.  In his report, the private practitioner assigned speech recognition thresholds.  The report does not state whether the Maryland CNC test was used for this examination.  In a November 2011 statement, the Veteran stated that he contacted the private facility and they told him that they had never heard of the Maryland CNC test. The report also does not indicate whether this examination was conducted by a state-licensed audiologist.  Accordingly, in April 2012, the Board remanded for this information to be obtained.  

Upon remand, in December 2012, the AMC spoke with HearUSA over the phone.  The representative from HearUSA stated that the July 2010 private examiner was a state-licensed hearing aid specialist, and was not an audiologist.  The HearUSA representative could not confirm the hearing testing protocol; however, she did indicate that the Veteran was seen for a free hearing test and not a diagnostic test.  The HearUSA representative stated that the Veteran was referred for an Ear, Nose, and Throat (ENT) examination, but did not schedule one.

Furthermore, the July 2010 private examination was submitted to a VA audiologist for interpretation and reconciliation.  Specifically, in a November 2012 medical opinion, a VA audiologist stated that he reviewed both the July 2010 private examination and the December 2010 VA examination.  The examiner stated that he conducted the December 2010 VA examination, and that examination was consistent, reliable, and valid under the Maryland CNC word list test and the speech recognition testing (SRT)/puretone agreement.  He stated that he could not speak for the private examiner's test or his credentials, as the credentials were not attached to the private July 2010 examination.  However, the VA examiner noted that the July 2010 results would be consistent with a person who was deaf and would rely solely on lip reading and/or sign language.  The VA treatment records and the December 2010 VA examination do not demonstrate that the Veteran is currently deaf.  The VA examiner further noted that there are several inconsistencies and concerns with the HearUSA test.

First, the November 2012 VA examiner pointed out that the July 2010 results were not obtained by a state-licensed audiologist, as this was not included in the July 2010 examiner's signature.  In contrast, the VA examiner pointed out that all testing performed at the VA is conducted by a state-licensed audiologist.

Second, the November 2012 VA examiner stated that the July 2010 examination had poor SRT/puretone average (PTA) agreement, which is a fundamental cross-check done to help ensure accurate puretone results.  A reasonable variable of 7dBHL (or less) is acceptable.  HearUSA obtained a SRT/PTA differential of 25dBHL, which is several standard deviations beyond what is considered remotely acceptable for a SRT/PTA agreement.  To elaborate, the examiner noted that the best threshold obtained by air conduction at the July 2010 examination was 110dBHL at 1000Hz bilaterally.  All other frequencies were recorded at 115dBHL or "no response."  Yet the SRT was performed at 90dBHL.  The examiner stated that this is simply "an impossibility as you can not understand speech at a presentation level below what you are able to hear in puretone testing."  Thus, the examiner found that the July 2010 examination was an invalid test.

Third, the November 2012 VA examiner stated that when word recognition testing was performed at the July 2010 examination, the examiner was able to obtain a score of 84 percent when presented at 100dBHL.  Again, the examiner stated that this result is impossible because, as described above, the best threshold obtained by air conduction was 110dBHL.

Fourth, the November 2012 VA examiner indicated that it appears that HearUSA, in conducting the July 2010 examination, did not follow standard VA protocols when testing the Veteran's bilateral hearing loss, to include the following: immittence measures to include tympanometry; ipsi- and contralateral reflexes and tone decay; and, recorded word lists (Maryland CNC).  The HearUSA hearing test was conducted using monitored live voice (MLV).  The November 2012 examiner stated that MLV is not a reliable or valid method, as there are variances between and within testers' speech/voice that can result in varying scores.  Instead, using a nationally accepted word list, such as the Maryland CNC, via recorded voice ensures consistent and reliable results across all test subjects.  The VA examiner noted that the representative for HearUSA, in the December 2012 phone conversation, had never heard of the testing protocols used by VA.  

Finally, the November 2012 VA examiner noted that performing acoustic reflex testing serves two key purposes.  It helps to rule out possible retrocochlear involvement (i.e., acoustic neuromas), and it can be used as another cross-check for puretone testing.  Since hearing tests are largely a behavioral (subjective) test, the examiner stated that it is helpful to be able to measure objective results when possible.  The examiner indicated that the acoustic reflex portion of the VA protocol is an objective measure that can be used to compare to puretone thresholds.  The examiner reported that when he conducted the December 2010 VA audiological examination, the acoustic reflexes were "largely within normal limits."  The examiner stated that if the Veteran had hearing thresholds at the VA examination, like those measured in July 2010, then the acoustic reflexes would have been absent bilaterally.  The November 2012 VA examiner stated that the acoustic reflexes he obtained at the December 2010 VA examination were consistent with the thresholds he obtained at the VA examination. 

In summary, the December 2010 VA examiner, in a November 2012 medical opinion, stated that he was "100% confident" in the results he obtained at the December 2010 VA examination.  In contrast, he found the July 2010 private examination results to be invalid.

Based on the aforementioned evidence, the Board cannot use the July 2010 private audiological scores to rate the Veteran's bilateral hearing loss, since the regulations specify that the Maryland CNC test must be used for this test.  The regulations also state that the audiological test must be conducted by a state-licensed audiologist.  38 C.F.R. § 4.85.  Both of these requirements were not met during the July 2010 private examination.  Id.  Moreover, the VA examiner found, with persuasive supporting rationale, that the results were invalid.  

There are no other private treatment records in the claims file besides the July 2010 examination, as described above.  The VA treatment records in the claims file do not provide contrary results to those discussed above.  Thus, based on the December 2010 VA examination and the VA treatment records, the Board finds that the Veteran is not entitled to a compensable initial disability rating for his service-connected bilateral hearing loss.  38 C.F.R. §§ 4.85, 4.86, DC 6100.  

The Veteran's lay testimony concerning the severity of his service-connected bilateral hearing loss is not competent (as measuring hearing loss requires audiologic expertise) and, thus, probatively outweighed by the objective credible VA medical findings to the contrary.  See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1991); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). See also 38 C.F.R. § 3.159(a)(2); Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). See, too, Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (indicating the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence).

Since, as mentioned, the present appeal arises from an initial rating decision which established service connection and assigned an initial disability rating, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings (i.e., separate ratings for separate periods of time based on the facts found).  See Fenderson, 12 Vet. App. at 125-26.  The Veteran, however, has not met the requirements for a higher rating at any time since the effective date of his award, so the Board may not stage his rating because his worst hearing, Level I in both ears, warrants no rating higher than the current noncompensable evaluation during the entire period at issue.

For these reasons and bases, the preponderance of the evidence is against the Veteran's claim - in turn meaning there is no reasonable doubt to resolve in his favor and his claim must be denied.  See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2012); Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

Extraschedular Evaluation

The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, the RO must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluation for the 
service-connected disability is inadequate.  Second, if the schedular evaluation does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the veteran's exceptional 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 the 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 under 38 C.F.R. § 3.321(b)(1).

In a March 2011 VA treatment record, the Veteran reported difficulty hearing the TV and music.  The Veteran also has reported a history of hearing difficulties while working.  The Veteran has not described exceptional or unusual features associated with his hearing loss.  There is no doubting the Veteran's symptoms cause some impairment in his functioning and capacity.  However, the extent of his impairment is adequately contemplated by the rating criteria, which reasonably describe the effects of his disability.  As the Board finds that the Veteran's disability picture is contemplated by the rating schedule, the inquiry ends and the Board need not consider whether the disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization.  Accordingly, referral for consideration of an extra-schedular rating is not warranted.

Finally, the Board also recognizes that the Court of Appeals for Veterans Claims has clarified that a claim for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities exists as part of a claim for an increase (whether in an original claim or as part of a claim for increased rating).  Rice v. Shinseki, 22 Vet. App. 447 (2009).  A TDIU claim is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability.  See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001).  While the Veteran reported that his hearing loss impacted his occupational activities, he did not contend that his bilateral hearing loss rendered him unemployable and the evidence does not otherwise suggest that this is the case. 
For these reasons, the Board finds that a claim for TDIU has neither been raised by the Veteran nor by the record in regard to the rating issue before the Board.


ORDER

An initial compensable disability evaluation for the Veteran's service-connected bilateral hearing loss is denied.



____________________________________________
TANYA A. SMITH
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs