Citation Nr: 1304787	
Decision Date: 02/08/13    Archive Date: 02/19/13

DOCKET NO.  99-24 185	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to an initial compensable rating for bilateral hearing loss from May 12, 1999, in excess of 10 percent from July 9, 2009, and in excess of 20 percent from February 24, 2012.  


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

S. Keyvan, Associate Counsel





INTRODUCTION

The Veteran had active service from March 1946 to January 1948.  

This matter originally came to the Board of Veterans' Appeals (Board) on appeal from an October 2001 rating decision which granted service connection for bilateral hearing loss and assigned an initial noncompensable disability rating, effective May 12, 1999.  

In the January 2012 decision, the Board, after delineating a lengthy procedural history of this case, denied service connection for a colloid cyst of the third ventricle of the brain and further denied service connection for adverse reactions to penicillin and Keflin, and remanded the remaining issues on appeal-entitlement to an increased (compensable) rating for bilateral otitis externa and an initial compensable rating for bilateral hearing loss-to the RO for additional evidentiary development.  During the pendency of the Veteran's appeal, and specifically in an April 2012 rating action, the Veteran's disability evaluation for his service-connected hearing loss was increased to 10 percent, effective from July 9, 2009, and to 20 percent, effective February 24, 2012.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (where evidence indicates that the degree of disability increased or decreased during the appeal period following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found).  

In the June 2012 decision, the Board denied a compensable rating for bilateral otitis externa, and remanded the claim for an initial increased rating for bilateral hearing loss for additional evidentiary development.  Specifically, the Board instructed the Agency of Original Jurisdiction (AOJ) to obtain any outstanding VA audiological tests conducted from May 1999 to the present time, to include results from audiometric testing conducted in January 2007.  The AOJ contacted the VA Medical Centers (VAMCs) in San Francisco and Fresno, California, and requested any audiological records dated from May 1999 to the present time.  Other than the report of the January 2007 audiometric results, which has been obtained and associated with the record, there were no outstanding VA audiological records available during the above-referenced time period (May 1999 to the present time).  As such, the Board finds that the RO completed the development requested in the June 2012 Board remand and complied with the remand instructions.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  

Although higher ratings have been assigned for the Veteran's bilateral hearing, as reflected in the April 2012 rating action, the issue remains in appellate status as the maximum initial rating has not been assigned.  See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a decision awarding a higher rating, but less than the maximum available benefit, does  not abrogate the pending appeal).  

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 May 12, 1999, to May 25, 2009, the Veteran manifested no worse than Level IV hearing in the right ear, and Level II hearing in the left ear.  

2.  From May 26, 2009, to February 23, 2012, the Veteran manifested no worse than Level V hearing in the right ear and Level IV hearing in the left ear.  

3.  From February 24, 2012, the Veteran, has exhibited Level IV hearing in the right ear and Level VI hearing in the left ear.


CONCLUSIONS OF LAW

1.  The criteria for an initial compensable rating for bilateral hearing loss from May 12, 1999, to May 25, 2009, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2012).  

2.  Effective May 26, 2009, the criteria for an initial assignment of a 10 percent disability rating for bilateral hearing loss have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2012).  

3.  The criteria for an initial rating in excess of 10 percent for bilateral hearing loss from May 26, 2009, to February 23, 2012, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.344, 4.1, 4.2, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2012).  

4.  The criteria for an initial rating in excess of 20 percent for bilateral hearing loss on or after February 24, 2012, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and to 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 & Supp. 2011); 38 C.F.R. § 3.159(b) (2011); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (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 that claimant is expected to provide.  This notice must be provided prior to an initial unfavorable decision by the AOJ.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The VCAA notice requirements apply to all five elements of a service connection claim.  These are (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The Board notes that VA's General Counsel has held that VCAA notice is not required for downstream issues.  VAOPGCPREC 8-2003.  Additionally, the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated."  Dingess, 19 Vet. App. at 490.  In this case, the Veteran's claim of service connection for a hearing disorder was granted in an October 2001 rating action.  He was also assigned a disability rating and effective date.  As the Veteran's current appeal stems from a disagreement with a downstream element, no additional notice is required because the purpose that the notice is intended to serve has been fulfilled.  See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

The Board also concludes that VA's duty to assist the Veteran in the development of his claim has been satisfied.  The Veteran's service treatment records as well as all identified and available VA medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's current claim.  Pursuant to the June 2012 Board Remand directive, the AOJ contacted the VAMCs in San Francisco and Fresno and requested any outstanding VA audiological records dated anytime between May 1999 and the present, to include results from audiometric testing conducted in January 2007.  Although documentation of audiometric testing conducted in January 2007 was provided, the August 2012 response from the Fresno VAMC indicated that the Veteran was seen at the San Francisco VAMC during the time period requested.  A September 2012 response from the San Francisco VAMC indicated that their system was clear for any records of audiometric testing conducted from May 1999 to January 2007.  In November 2012, the RO issued a Formal Finding on the Unavailability of treatment records at the San Francisco and Fresno VAMCs, listing the various attempts made to locate the Veteran's records.  According to the memorandum, all procedures to obtain records pertaining to the Veteran had been correctly followed, all efforts to obtain the needed information had been exhausted, and any further attempts were futile.  

In addition, the Veteran's more recent post-service treatment records issued at the Fresno VAMC, and dated from December 2008 to April 2012, have been associated with the Veteran's Virtual VA claims file and were reviewed by the RO and the Board in connection with the Veteran's claim.  Additionally, the Veteran has submitted written statements in support of his appeal, and neither the Veteran, nor his representative, have otherwise alleged that there are any outstanding medical records probative of the claim that need to be obtained.  

Moreover, in addition to obtaining all relevant records, the Veteran was also afforded VA examinations in May 2009, July 2009 and February 2012.  There is no objective evidence indicating that there has been a material change in the severity of his service-connected hearing disorder since the Veteran was last examined.  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 otherwise adequate VA examinations were conducted.  See VAOPGCPREC 11-95.  

To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  As noted below, the Board finds that the VA examinations obtained in this case are more than adequate, as they were predicated on a review of the Veteran's medical records, an interview with the Veteran, and a discussion of his medical history and because the examinations fully address the rating criteria that is relevant to rating the disability in this case.  

While it is unclear whether the Veteran's claims file was reviewed in its entirety during the July 2009 VA audiological evaluation, the Veteran's subjective complaints and the objective findings were recorded, prior medical records were referenced, and the Veteran was afforded a subsequent VA examination in which the claims file was reviewed.  Thus, there is adequate medical evidence of record to make a determination in this case.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination concerning the issue on appeal has been met.  38 C.F.R. § 3.159(c)(4)

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome here, the Board finds that any such failure is harmless.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328  (Fed. Cir. 2006).

II.  Merits of the Claim

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  38 C.F.R. § 4.7.  

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of the disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Where a Veteran appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous . . . ."  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found.  Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA's determination of the 'present level' of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending).  

Disability ratings for service-connected hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations rendered from audiometric evaluations.  38 C.F.R. § 4.85 (2009); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 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 audiological evaluations are conducted using a controlled speech discrimination test together with the results of pure tone audiometry tests.  The vertical line in Table VI (printed in 38 C.F.R. § 4.85) represents nine categories of the percentage of discrimination based on a controlled speech discrimination test.  The horizontal columns in Table VI represent 9 categories of decibel 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 pure tone decibel 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 for the numeric designation for the level for the ear having the poorer hearing acuity.  For example, if the better ear had a numeric designation of Level "V" and the poorer ear had a numeric designation of Level "VII" the percentage evaluation is 30 percent.  See 38 C.F.R. § 4.85.  

Regulations also provide that in cases of exceptional hearing loss, i.e., when the pure tone 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.  38 C.F.R. § 4.86(a).  The provisions of 38 C.F.R. § 4.86(b) further provide that when the pure tone threshold is 30 decibels or less at 1000 hertz and 70 decibels or more at 2000, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIA, whichever results in the higher numeral.  That numeral will then be evaluated to the next higher Roman numeral.  

If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service connected ear will be assigned a Roman numeral designation for hearing impairment of me.  38 C.F.R. § 4.85(f).  

Furthermore, in Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the 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 (2009).  The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing loss disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  

A.  From May 12, 1999, to May 25, 2009

In considering the evidence of record under the laws and records as set forth above, the Board concludes that the Veteran is not entitled to an initial compensable evaluation for his bilateral hearing loss for the period from May 12, 1999, to May 25, 2009, under 38 C.F.R. §§ 4.85 or 4.86, Diagnostic Code 6100.  In this regard, the Veteran was first afforded a VA audiological evaluation in May 1999.  The audiological evaluation revealed right ear auditory thresholds in the frequencies 1000, 2000, 3000 and 4000 Hertz as 30, 40, 60 and 75.  For the left ear, auditory thresholds in the same frequencies were recorded as 20, 25, 40 and 45.  The average pure tone threshold was 51 in the right ear and 33 in the left.  Speech recognition ability was 80 percent in the right ear and 90 percent in the left.  However, it is unclear whether the audiologist used the Maryland CNC test for speech discrimination testing.  Assuming that the Maryland CNC test was used, the results of the May 1999 VA examination correspond to Level IV hearing for the right ear and Level II hearing in the left ear.  38 C.F.R. § 4.85(b).  When these values are applied to Table VII, a noncompensable disability rating is assigned.  38 C.F.R. § 4.85.

The Board has also considered whether a compensable evaluation for hearing loss is warranted under 38 C.F.R. § 4.86.  Based on the May 1999 audiometric findings, however, the Veteran's disability did not meet the requirements of 38 C.F.R. § 4.86.  In this regard, the Veteran did not have puretone thresholds of 55 decibels or more at each of the frequencies of 1000, 2000, 3000 and 4000 hertz or a puretone threshold of 30 decibels or less at 1000 hertz and 70 decibels or more at 2000 hertz.  As such, it is apparent that the currently assigned noncompensable disability evaluation for the Veteran's bilateral hearing loss is accurate and appropriately reflects his hearing loss under the provisions of 38 C.F.R. §§ 4.85 and 4.86(a).  

The Veteran was afforded another VA examination in December 2001, at which time, the audiological evaluation revealed right ear auditory thresholds in the frequencies 1000, 2000, 3000 and 4000 Hertz as 35, 50, 60, 80.  For the left ear, auditory thresholds in the same frequencies were recorded as 20, 25 35 and 45.  It also appears that the audiometric results were annotated on a piece of notepad paper attached to the examination report.  The average pure tone threshold was 56 in the right ear and 31 in the left.  Speech recognition ability using the Maryland CNC word list was 80 percent in the right ear and 88 percent in the left ear.  

Based on the December 2001 audiological findings, the preponderance of the evidence is against a compensable disability rating for bilateral hearing loss.  According to Table VI, the results of the December 2001 VA examination once again correspond to Level IV hearing for the right ear and Level II hearing for the left ear.  38 C.F.R. § 4.85(b).  When those values are applied to Table VII, it is apparent that the noncompensable evaluation for the Veteran's bilateral hearing loss is accurate and appropriately reflects his bilateral hearing loss under the provisions of 38 C.F.R. § 4.85.  Such results support the assignment of a noncompensable disability rating under 38 C.F.R. § 4.85, Table IV and VII.  

The Board has again considered whether a compensable evaluation for hearing loss is warranted under 38 C.F.R. § 4.86.  Based on the December 2001 examination findings, however, the Veteran's disability did not meet the requirements of 38 C.F.R. § 4.86.  Specifically, the December 2001 audiometric findings do not reflect puretone thresholds of 55 decibels or more at each of the frequencies of 1000, 2000, 3000 and 4000 Hertz or a puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  

VA treatment records dated in January 2007, February 2007 and September 2008 reflect that the Veteran periodically consulted with an audiologist and was fitted and subsequently re-fitted for hearing aids to help improve his hearing.  Throughout this period, the Veteran was also seen and treated for a recurring fungal infection in the right ear on a regular basis.  

The Board acknowledges that the Veteran underwent an audiological evaluation at a VA treatment facility in January 2007.  Although the speech discrimination scores were noted in the report, it appears that such scores were determined using the "NU-6" word list.  For VA purposes, the Maryland CNC Test must be used.  38 C.F.R. § 4.85(a).  The results of the January 2007 audiometric testing showed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
35
50
70
85
LEFT
40
35
55
70
85

The VA audiogram results were provided in graph form, and the Board has depicted the numerical results from the graph as shown in the charts above.  See Kelly v. Brown, 7 Vet. App. 471, 474 (1995) (noting that, because interpreting results from an audiometric graph involves fact finding, the Court is precluded from engaging in such fact finding in the first instance, and remanding in part because the Board did not discuss the results of the private audiometric testing).  These results yield a puretone threshold average of 60 for the right ear and 61 for the left ear.  38 C.F.R. § 4.85(d).  These testing results, however, remain inadequate for VA rating purposes because the audiologist did not used the Maryland CNC for speech discrimination testing as required by VA regulation.  38 C.F.R. § 4.85(a).  

The Board has considered whether the January 2007 puretone threshold averages can be applied to Table VIa.  In accordance with 38 C.F.R. § 4.85(c), Table VIa is used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86.  Here, the January 2007 VA audiologist has neither indicated, nor stated, that the speech discrimination test used was inappropriate for any of the reasons discussed above.  Furthermore, based on the January 2007 audiometric findings, the Veteran's disability did not meet the requirements under 38 C.F.R. § 4.86.  Specifically, the Veteran did not have puretone thresholds of 55 decibels or more at each of the frequencies of 1000, 2000, 3000 and 4000 Hertz or a puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  As such, the January 2007 puretone threshold averages cannot be applied to Table VIa.  

The Veteran did not report any hearing problems at the May 1999 VA audiological VA examination.  At the December 2001 VA audiological evaluation, the VA examiner noted that the Veteran's chief complaint was understanding speech, and his greatest difficulty involved hearing in group situations.  To the extent that the May 1999 and December 2001 examination reports did not include a discussion of the effects of the Veteran's hearing loss disability on his daily life, the Board finds no prejudice to the Veteran as a result of this omission.  Indeed, neither the Veteran nor his representative has alleged such prejudice.  Moreover, although the Veteran reported to experience difficulty hearing in group-type situations, as will be discussed in greater detail below, it has not been contended that the Veteran's hearing loss disability has resulted in marked interference with employment or activities of daily life.  Thus, any error on the part of the May 1999 and December 2001 VA examiners in failing to address the effects of the Veteran's hearing loss disability on his occupation and daily life in the examination reports is harmless.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  

Thus, as the criteria for an initial compensable evaluation for the Veteran's service-connected bilateral hearing loss for the period from May 12, 1999, to May 25, 2009, have not been met, the appeal is denied.  In essence, the preponderance of the evidence is against an initial compensable evaluation for the Veteran's bilateral hearing loss from May 12, 1999, to May 25, 2009.  Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply.  As such, entitlement to an initial compensable evaluation for service-connected bilateral hearing loss from May 12, 1999, to May 25, 2009, must be denied.  

B.  From May 26, 2009, to February 23, 2012

In considering the evidence of record under the laws and records as set forth above, the Board concludes that the Veteran is not entitled to an evaluation in excess of 10 percent for his bilateral hearing loss from May 26, 2009, to February 23, 2012, pursuant to 38 C.F.R. §§ 4.85 or 4.86, Diagnostic Code 6100.  

The Veteran underwent a VA fee-based audiological evaluation in connection to his claim for hearing loss and other ear-related disorders at the Central California Ear, Nose & Throat clinic in May 2009.  The physician acknowledged the Veteran's long history of hearing loss and noted that he currently wears a hearing aid in both ears.  The audiological evaluation revealed right ear auditory thresholds in the frequencies 1000, 2000, 3000 and 4000 Hertz as 45, 55, 65 and 85 and left ear auditory thresholds in the same frequencies as 45, 50, 70 and 80.  The audiogram results were provided in graph form, and the Board has depicted the numerical results from the graph provided.  See Kelly, 7 Vet. App. 471, 474 (1995).  The average pure tone threshold was 63 in the right ear and 61 in the left.  Speech recognition ability was 72 percent in the right ear and 76 percent in the left.  Although it is unclear whether the audiologist used the Maryland CNC test for speech discrimination testing, the Board resolves reasonable doubt in favor of the Veteran and assumes that the Maryland CNC test was used.  When applying these results to Table VI, the results of the May 2009 examination correspond to Level V hearing for the right ear and Level IV hearing for the left ear.  See 38 C.F.R. § 4.85(b).  When those values are applied to Table VII, a 10 percent rating is assigned.  38 C.F.R. § 4.85.  As such, the Board finds that the Veteran is entitled to an initial evaluation no higher than 10 percent for his bilateral hearing loss, effective May 26, 2009.  

In making this determination, the Board has considered whether an initial evaluation in excess of 10 percent for hearing loss can be assigned under 38 C.F.R. § 4.86.  During his examination, however, the Veteran's disability did not meet the requirements of 38 C.F.R. § 4.86.  In this regard, the Veteran did not have puretone thresholds of 55 decibels or more at each of the frequencies of 1000, 2000, 3000 and 4000 hertz or a puretone threshold of 30 decibels or less at 1000 hertz and 70 decibels or more at 2000 hertz.  

Further review of the record reflects that the Veteran underwent another VA audiological evaluation in July 2009.  The audiological evaluation revealed right ear auditory thresholds in the frequencies 1000, 2000, 3000 and 4000 Hertz as 40, 60, 75, and 100 and left ear auditory thresholds in the same frequencies as 35, 50, 75, and 80.  The average pure tone threshold was 69 in the right ear and 60 in the left.  Speech recognition ability was 82 percent in the right ear and 80 percent in the left ear.  When applying these results to Table VI, the results of the July 2009 examination correspond to Level IV hearing for both the right and left ears.  See 38 C.F.R. § 4.85(b).  When those values are applied to Table VII, a 10 percent rating is once again assigned.  38 C.F.R. § 4.85.  

The Board has once again considered whether an initial evaluation in excess of 10 percent for hearing loss is warranted under 38 C.F.R. § 4.86.  During his examination, however, the Veteran's disability did not meet the requirements of 38 C.F.R. § 4.86.  In this regard, the Veteran did not have puretone thresholds of 55 decibels or more at each of the frequencies of 1000, 2000, 3000 and 4000 hertz or a puretone threshold of 30 decibels or less at 1000 hertz and 70 decibels or more at 2000 hertz.  As such, it is apparent that the currently assigned 10 percent disability evaluation for the Veteran's bilateral hearing loss is accurate and appropriately reflects his hearing loss under the provisions of 38 C.F.R. §§ 4.85 and 4.86(a).  

Based on these results, the Board concludes that the Veteran is entitled to an initial evaluation of 10 percent for his bilateral hearing loss as of May 26, 2009, and that an initial evaluation in excess of 10 percent for the Veteran's bilateral hearing loss from May 26, 2009 to February 23, 2012 is not warranted.  It is apparent that the assigned 10 percent disability evaluation for the aforementioned time period for the Veteran's bilateral hearing loss is accurate and appropriately reflects his hearing loss under the provisions of 38 C.F.R. §§ 4.85 and 4.86.  Although the Veteran contends that his bilateral hearing loss was more severe, and therefore warrants a higher evaluation, the assignment of disability evaluations for hearing impairment is a purely mechanical application of the rating criteria from which the Board cannot deviate.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  

In this case, the July 2009 VA examiner noted that the Veteran had a difficult time hearing when having conversations over the phone and at church, when listening to people whisper, and when listening to female voices.  In the questionnaire, he noted that he usually asks the speaker to repeat his or herself, pretends he really heard, or asks someone what was said if he misunderstands what someone is saying.  To the extent that the July 2009 examination report did not include a discussion of the effects of the Veteran's hearing loss disability on his daily life, the Board finds no prejudice to the Veteran as a result of this omission.  Indeed, neither the Veteran nor his representative has alleged such prejudice.  Moreover, although the Veteran reported difficulty understanding when people speak to him over the phone or in group-type situations, it has not been contended that the Veteran's hearing loss disability has resulted in marked interference with employment or activities of daily life.  

In fact, at the August 2009 VA examination in connection to a neurological disorder (which is currently not on appeal before the Board), the Veteran stated that he worked at an insurance company for twenty-five years, as a surveyor at the United States Department of Agriculture (USDA) for nine years, and finally in an administrative type position for Fresno County, California, for two years prior to retiring in 1989 at the age of 62.  He does not contend that his retirement and decision to stop working was based on an inability to perform his duties as a result of his hearing loss.  Thus, any error on the part of the July 2009 VA examiner in failing to address the effects of the Veteran's hearing loss disability on his occupation and daily life in the examination report is harmless.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  In this regard, the Veteran is claiming a higher initial rating for his bilateral hearing loss, not that the VA examination reports were defective.  See Martinak, 21 Vet. App. at 455.  

C.  On or after February 24, 2012

Following a review of the relevant evidence, the Board finds that the record does not contain evidence showing that the Veteran is entitled to an evaluation in excess of 20 percent as of February 24, 2012.  

The record reflects that the Veteran underwent a new VA audiological evaluation in February 2012.  The audiological evaluation revealed right ear auditory thresholds in the frequencies 1000, 2000, 3000 and 4000 Hertz as 50, 60, 75, and 90, and left ear auditory thresholds in the same frequencies as 50, 50, 75, and 90.  The average pure tone threshold was 69 in the right ear and 66 in the left.  Speech recognition ability was 80 percent in the right ear and 74 percent in the left.  The results of the February 2012 examination correspond to Level IV hearing for the right ear and Level VI hearing for the left ear in Table VI.  See 38 C.F.R. § 4.85(b).  When those values are applied to Table VII, a 20 percent rating is assigned.  38 C.F.R. § 4.85.  

The Board has also considered whether an initial evaluation in excess of 20 percent for hearing loss is warranted under 38 C.F.R. § 4.86.  During his examination, however, the Veteran's disability did not meet the requirements of 38 C.F.R. § 4.86.  In this regard, the Veteran did not have puretone thresholds of 55 decibels or more at each of the frequencies of 1000, 2000, 3000 and 4000 hertz or a puretone threshold of 30 decibels or less at 1000 hertz and 70 decibels or more at 2000 hertz.  As such, it is apparent that the currently assigned 20 percent disability evaluation from February 24, 2012 for the Veteran's bilateral hearing loss is accurate and appropriately reflects his hearing loss under the provisions of 38 C.F.R. §§ 4.85 and 4.86(a).  Therefore, the Veteran is not entitled to a higher evaluation for his service-connected bilateral hearing loss pursuant to 38 C.F.R. § 4.86(b).  

Based on these results, the Board concludes that an evaluation in excess of 20 percent for the Veteran's bilateral hearing loss on or after February 24, 2012, is not warranted.  It is apparent that the assigned 20 percent disability evaluation for the aforementioned time period for the Veteran's bilateral hearing loss is accurate and appropriately reflects his hearing loss under the provisions of 38 C.F.R. §§ 4.85 and 4.86.  Although the Veteran contends that his bilateral hearing loss was more severe, and therefore warrants a higher evaluation, the assignment of disability evaluations for hearing impairment is a purely mechanical application of the rating criteria from which the Board cannot deviate.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  

In addition, the February 2012 VA examiner noted that the Veteran currently experiences "a moderate to profound sloping bilateral sensorineural hearing loss with fair word recognition scores."  According to the VA examiner, the Veteran was currently not using any hearing aids, and therefore "does not have usable hearing to hear and understand normal conversational speech with utilization of visual cues."  The VA examiner, however, noted that even with the use of properly fit hearing aids, the Veteran would still experience difficulty "understanding soft conversational speech in quiet, and all conversational speech in the presence of competing background noise.  

To the extent that the February 2012 examination report did not include a more detailed discussion of the effect of the Veteran's hearing loss disability on his occupational functioning and daily life, the Board finds no prejudice to the Veteran as a result of this omission.  Indeed, neither the Veteran nor his representative has alleged such prejudice, and as discussed herein, the evidence does not show, and it has not been contended, that the Veteran's hearing loss disability has resulted in marked interference with employment or activities of daily life.  As discussed herein, the evidence of record reflects that the Veteran is currently retired.  There is nothing in the record to show that the Veteran experienced any difficulty carrying out his occupational duties as a result of his hearing loss.  Furthermore, the February 2012 VA examiner has addressed particular situations of difficulty which the Veteran may face with regard to his hearing loss.  Thus, any error on the part of the February 2012 VA examiner in failing to provide additional or more detailed information with respect to the effect of the Veteran's hearing loss disability on his occupational functioning and daily activities is harmless.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  In this regard, the Veteran is a higher initial evaluation for his bilateral hearing loss, not that the February 2012 examination report was defective.  See Martinak, 21 Vet. App. at 455.  

Therefore, to the extent that a disability evaluation in excess of 20 percent for the Veteran's service-connected bilateral hearing loss is warranted on and after February 24, 2012, the appeal is denied.  

Staged ratings are appropriate in this case since it is an appeal of the initial rating, and the May 1999, December 2001, May 2009, July 2009 and February 2012 VA examinations described in more detail above clearly show different medical findings for distinct time periods.  

Furthermore, prior to retiring, the Veteran worked in administrative type positions for an insurance company, the USDA and Fresno County.  There is nothing in the record that suggests that his decision to retire was based on his bilateral hearing loss.  Accordingly, consideration of the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability is not warranted.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  

In denying the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular 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) (2012).  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 first 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 claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant'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 evaluation for the service-connected bilateral hearing loss is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's hearing loss with the established criteria found in the rating schedule for hearing loss shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology; as discussed above, the rating criteria considers loss of hearing acuity and degradation of speech discrimination.

The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms."  The record does not show that the Veteran has required frequent hospitalizations for his hearing loss.  Indeed, it does not appear from the record that he has been hospitalized at all for that disability.  Additionally, there is not shown to be evidence of marked interference with employment due to his service-connected hearing loss disability.  As previously noted, the Veteran worked in various administrative positions prior to his retirement, and there is nothing in the record which suggests that the Veteran's decision to retire was based on his bilateral hearing loss.  Indeed, there is no evidence to show that the Veteran's bilateral hearing loss itself markedly impacted his ability to obtain or maintain employment.  Moreover, there is no evidence in the medical records of an exceptional or unusual clinical picture.

In short, there is nothing in the record to indicate that this service-connected disability on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular rating.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired).  The Board therefore has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.













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ORDER

Entitlement to an initial compensable evaluation for bilateral hearing loss from May 12, 1999, to May 25, 2009, is denied.

Entitlement to an initial disability evaluation in excess of 10 percent for bilateral hearing loss for the period from May 26, 2009, to February 23, 2012, is denied.

Entitlement to an initial disability evaluation in excess of 20 percent for bilateral hearing loss on and after February 24, 2012, is denied.  





____________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs