Citation Nr: 1304563	
Decision Date: 02/07/13    Archive Date: 02/19/13

DOCKET NO.  11-31 327	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUE

Entitlement to an initial compensable rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. C. Graham, Counsel


INTRODUCTION

The Veteran served on active duty from September 1955 to December 1958.  The current matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision in which the Boston, Massachusetts, Regional Office (RO) of the Department of Veterans Affairs (VA) granted service connection for bilateral hearing loss and assigned a noncompensable rating for this disability.  A hearing was held before the undersigned Veterans Law Judge (VLJ) at the RO in September 2012.  A copy of the hearing transcript has been associated with the file.

VA treatment records dated in December 2012 have been associated with the Veteran's Virtual VA claims file but do not appear to have been considered by the RO in the last adjudication of the claim in January 2013.  Further, consideration of such evidence has not been waived by the Veteran.  See 38 C.F.R. § 20.1304 (2012).  However, these records contain no findings relevant to the Veteran's bilateral hearing loss.  Therefore, there is no need to remand the initial rating claim to allow for RO consideration of these additional VA treatment records.

The Veteran has submitted evidence that he has a vestibular disorder manifested by dizziness.  Additionally, statements submitted by the Veteran and his wife appear to associate this disorder with the service-connected bilateral hearing loss and/or the service-connected tinnitus.  The issue of entitlement to service connection for a vestibular disorder manifested by dizziness, to include as due to a service-connected disability, is referred to the agency of original jurisdiction (AOJ) for appropriate disposition.

Please note that 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

The preponderance of recent audiological evaluations show hearing impairment no worse than Level II in the right ear and no worse than Level I in the left ear.
CONCLUSION OF LAW

The criteria for an initial compensable evaluation for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

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

The VCAA describes VA's 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 representative 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).  The VCAA notice 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. VCAA notice 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).

Here, the Veteran's initial rating claim is a "downstream" issue in that it arose from an initial grant of service connection.  Prior to the September 2011 rating decision, a letter dated in September 2010 advised the Veteran of the evidence necessary to substantiate his claim for service connection for a bilateral hearing loss and of his and VA's respective obligations with regard to obtaining evidence.  Importantly, where, as here, service connection has been granted and the initial rating and effective date have been assigned, the claim for service connection has been more than substantiated.  It has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled.  Once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional § 5103(a) notice.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-491 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

Additionally, VA has a duty to assist a Veteran in the development of his/her claim.  This duty includes assisting him/her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

Here, the Veteran's service treatment records (STRs) have been obtained and associated with the claims folder.  Also, his VA and private treatment records (including those associated with his Virtual VA file) have been reviewed; he has not otherwise reported additional treatment for his service-connected bilateral hearing loss.  He was afforded VA audiological examinations in April 2011 and November 2012, the reports of which are of record.  The Board finds that both VA examinations obtained in this case are adequate for rating purposes.  Specifically, the examination reports contain sufficient evidence by which to evaluate the Veteran's claim in the context of the rating criteria.  Furthermore, both VA examiners elicited information from the Veteran concerning the functional effects of his hearing loss disability.  Martinak v. Nicholson, 21 Vet. App. 447 (2007).

In November 2012, the Board remanded this issue to obtain additional private and VA treatment records and to afford the Veteran a VA examination.  Review of the record reflects substantial compliance with the Board's Remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  As noted above, an adequate audiological examination was developed in November 2012.  In addition, the Veteran provided a November 2011 treatment record from a private audiology clinic, West Newton Hearing Center, as well as December 2009 and April 2011 audiograms from treatment at the VA medical facility in Jamaica Plain, Massachusetts.  The latter audiograms were recorded in table form in the December 2009 VA treatment record and the April 2011 VA examination report, respectively.

Otherwise, the Veteran and his representative have submitted arguments in support of the Veteran's claim.  Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the appeal that has not been obtained.  Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of this initial rating claim.

II.  Schedular Evaluation

Disability evaluations are determined by comparing a veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012).  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  After 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 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where, as here, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection, and consideration of the appropriateness of staged ratings are required.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  The assigned evaluation for hearing loss is determined by mechanically applying the rating criteria to certified test results.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examinations.  Evaluations of hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz.  The rating criteria establish eleven auditory acuity levels designated from I to XI.  As set forth in the regulations, Tables VI, VIa, and VII are used to calculate the rating to be assigned.  See 38 C.F.R. § 4.85 (Diagnostic Code 6100).
Additionally, the regulations allow for evaluating exceptional patterns of hearing impairment.  When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a).  When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 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.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(b).  In view of the audiometric results detailed below, these provisions are not applicable during any period of the claims process.

A VA audiological evaluation was afforded to the Veteran in December 2009 in response to his report of difficulty hearing in groups of people.  On audiological evaluation, speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 92 in the left ear-as well as puretone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
30
75
95
LEFT
15
10
65
65
75

At an April 2011 VA audiological examination, the examiner noted, in particular, that in noisy environments the Veteran could have difficulty hearing words clearly.  Employment in a low noise level environment was considered ideal.  The examiner opined that, with reasonable ADA (Americans with Disabilities Act) accommodations, the Veteran's hearing loss alone "should not significantly affect vocational potential or limit participation in most work activities."  On audiological examination, puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
65
65
70
LEFT
15
10
35
75
90
Speech audiometry revealed speech recognition ability of 86 percent in the right ear and of 94 in the left ear.

A private audiological report was afforded to the Veteran in November 2011.  VA is not precluding from interpreting the graph data from a private audiology report which otherwise meets the requirements of an examination for hearing impairment for VA purposes and converting them into numerical data.  See, e.g., Kelly v. Brown, 7 Vet. App. 471 (1995).  Converting the graph provided to table form reveals that puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
35
75
95
LEFT
10
15
65
75
75

Word recognition scores revealed speech recognition ability of 96 percent in the right ear and of 92 in the left ear.  However, there is no indication that the West Newton Hearing Center used the Maryland CNC for speech recognition testing.

Another VA audiological examination was afforded to the Veteran in November 2012 after he testified before the undersigned VLJ that his hearing had worsened since his last (2011) VA audiology examination.  The examiner noted, in particular, the Veteran's report of difficulty hearing in social situations.  On audiological examination, speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 in the left ear.  In addition, puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
35
70
90
LEFT
15
10
60
65
80

Based on those results with the utilization of Table VI, the VA audiology reports show that the Veteran had, at most, Level II hearing impairment in the right ear and Level I hearing impairment in the left ear.  Applying the results to Table VII, a noncompensable rating would be warranted for bilateral hearing loss based on the VA audiological examination and evaluation results.  See 38 C.F.R. § 4.85 (Diagnostic Code 6100).  Nor do these audiological results warrant a compensable rating based on exceptional hearing loss patterns.  38 C.F.R. § 4.86.  

The November 2011 private audiometric results translated to Level III hearing loss in the right ear and Level IV hearing loss in the left ear with the application of Table VIa.  Although the circumstances of this case do not exactly comport with the restrictions on the use of Table VIa according to 38 C.F.R. § 4.85 and 4.86, the Board finds that application of Table VIa is warranted in this case, given that it is unclear that the private provider used the Maryland CNC testing, as required in 38 C.F.R. § 4.85.  Regardless, the Board finds that there is no prejudice to the Veteran in applying Table VIa as the levels of hearing disability are higher/more severe with the application of Table VIa than if Table VI were applied in this case.  

Initially, and in this regard, the Board acknowledges that these private audiological results do not warrant a compensable rating based on exceptional hearing loss patterns.  38 C.F.R. § 4.86.  Furthermore, as noted above, the private audiometric findings translated to Level III hearing in the right ear and Level IV hearing in the left ear.  However, the three VA examination/evaluation audiometric findings translated to no higher than Level II hearing in the right ear and no higher than Level I hearing in the left ear.  After a review of all the evidence in this case, the Board finds that the weight of the evidence equates to a noncompensable evaluation for hearing loss throughout the appeal period.  38 C.F.R. § 4.85, Diagnostic Code 6100 (2012).  The Board bases this conclusion on the fact that there are three VA examinations/evaluations which are relatively consistent with each other and which all show a noncompensable level of hearing loss.  Significantly, the November 2012 VA audiology examination was developed after the November 2011 private audiometry record.  Thus, to the extent that an increased level of disability was reflected in November 2011 private record, such increased disability was not consistently shown thereafter, i.e., in the subsequent November 2012 VA audiology examination report.  Only the private audiometric examination suggests a compensable level of hearing loss, but it is an outlier and inconsistent with the three other relatively concurrent examination/evaluations.  Therefore, the Board will weigh the three VA examinations more heavily.

Finally, 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 impairment disability on occupational functioning and daily activities.  See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dept of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2011).  The Court also noted, however, that, even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  In this case, the 2011 VA examiner noted that the Veteran will have difficulty hearing in noisy environments.  The Veteran reported difficulty in this area, such as when he is in social situations.  The 2011 examiner noted that in quiet settings the Veteran's vocational potential should not be significantly impacted and should not limit his participation in most work activities.  The Veteran has been issued appropriate amplification (hearing aids) from VA.  Thus, as noted above, the Veteran's 2011 VA examination complied with Martinak.  See Martinak, 21 Vet. App. at 447.

The Board acknowledges the Veteran's contentions regarding impact of his hearing loss on his daily activities, and VA's obligation to resolve all reasonable doubt in his favor.  However, as noted previously, because assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluation to assign.  Lendenmann v. Principi, 3 Vet. App. 345; 38 C.F.R. § 4.85, Tables VI, VIA, and VII, Diagnostic Code 6100.  There is a preponderance of the evidence against a compensable rating for bilateral hearing loss disability.  Thus, there is no reasonable doubt to be resolved.

III.  Additional Considerations

Consideration has also been given to whether the schedular rating is inadequate, requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extra-schedular evaluation.  Such a referral is warranted where a service-connected disability presents an exceptional or unusual disability picture that renders impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1).

An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 115-116.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required.  Id. at 116.

The schedular rating in this case is adequate.  There is no showing that the Veteran's service-connected bilateral hearing loss is so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis.  38 C.F.R. § 3.321(b)(1).  The symptoms of this disability, namely difficultly hearing, have been accurately reflected by the schedular criteria.  Furthermore, as noted above, VA examiners addressed the impact of the Veteran's hearing loss on his unemployability and found that it should not be significantly affected.  The 2011 VA examiner went so far as to say that employment would be "more than feasible" if the Veteran were in a loosely supervised situation, requiring little interaction with the public.  Thus, the examiners elicited information from the Veteran concerning the functional effects of his hearing loss.  Martinak, 21 Vet. App. 447.  The Board has considered the Veteran's contentions regarding the effects his hearing loss has on his daily life.  Here, while the Veteran's bilateral hearing loss can cause communication problems in many situations, there is no indication that the disability causes an unusual employment impairment or otherwise precludes the Veteran from engaging in daily activities.

Therefore, without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted.  Thun, 22 Vet. App. at 115-16; 38 C.F.R. § 3.321(b)(1).

Also, the record does not show, nor has the Veteran contended, that he is unemployable as a result of his service-connected bilateral hearing loss.  In fact, after the initial grant of service connection, an October 2010 VA treatment record shows that the Veteran remains active in the commercial real estate market.  Thus, a claim for a total disability rating based on individual unemployability due to service-connected disability need not be discussed further.  Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).


ORDER

An initial compensable rating for bilateral hearing loss is denied.



____________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs