Citation Nr: 1305013 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 06-17 510 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a compensable evaluation for otosclerosis of the right ear, to include extraschedular consideration under 38 C.F.R. § 3.321(b)(1). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from September 1954 to September 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. The evidence of record shows no worse than Level V hearing acuity in the Veteran's right ear. 2. In November 2012, the VA Director of Compensation and Pension Service denied an extraschedular rating for the Veteran's service-connected otosclerosis of the right ear. 3. The evidence of record does not show that the Veteran's service-connected otosclerosis of the right ear results in an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards. CONCLUSION OF LAW The criteria for a compensable evaluation for otosclerosis of the right ear have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.85, 4.86, 4.87, Diagnostic Codes 6202, 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. 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). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In the present case, the RO's December 2004, March 2006 and October 2010 letters advised the Veteran of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The March 2006 and October 2010 letters provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. The Veteran's claims were subsequently readjudicated in a December 2012 supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (finding that the issuance of a fully compliant notification followed by readjudication of the claim, such as an statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Accordingly, the RO effectively satisfied the notice requirements with respect to the issue on appeal. The duty to assist the Veteran has also been satisfied in this case. The RO has obtained the Veteran's available service treatment records and all identified VA and private treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Recently, the RO provided the Veteran with an October 2010 VA audiological examination and a November 2010 VA examination for ear disease. These examinations were performed by VA examiners that had reviewed the Veteran's claims file, the history of this condition with the Veteran, examined the Veteran, and included rationales for the conclusions reached therein. The Board finds these examinations are adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Veteran has not claimed that either of these examinations was inadequate. Id. Finally, there is no sign in the record that additional evidence relevant to the issue being addressed are available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In January 2009, and again in June 2010, the Board remanded this matter to comply with the Veteran's request for a hearing before the Board. In August 2010, the Veteran testified at a video conference hearing before the Board. Accordingly, the directives of the Board's January 2009 and June 2010 remand have been accomplished. See Stegall v. West, 11 Vet. App. 268 (1998). Subsequent Board remands in September 2010 and September 2011 directed the RO to obtain the Veteran's updated clinical records; provide the Veteran with an updated examination to determine the current severity of his otosclerosis of the right ear; and to consider whether referral is warranted for extraschedular rating was warranted pursuant to 38 C.F.R. § 3.321(b). The RO sent the Veteran an October 2010 letter requesting that he identify any additional treatment he received for his disability; and in March 2011, the RO obtained updated VA treatment records relating to the Veteran. As noted above, the Veteran was scheduled for an October 2010 VA audiological examination and a November 2010 VA ear disease examination. Finally, based upon the RO's June 2012 request, the VA Director of Compensation and Pension Service in November 2012 issued an administrative review for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). Accordingly, the directives of the Board's September 2010 and September 2011 remands have been accomplished. See Stegall, 11 Vet. App. at 268. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran is seeking a compensable evaluation for his service-connected otosclerosis of the right ear. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2012). 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. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. See 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. See 38 C.F.R. § 4.2; Peyton v. Lewinski, 1 Vet. App. 282 (1991). Staged ratings are appropriate when the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The severity of a hearing loss disability is determined by comparisons of audiometric test results with specific criteria set forth in the Rating Schedule. 38 C.F.R. § 4.85. Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz. The audiometric test results are then translated into a numeric designation ranging from Level I to Level XI, in order to evaluate the degree of disability from bilateral service-connected defective hearing. 38 C.F.R. § 4.85. The rating criteria also provide for rating exceptional patterns of hearing impairment. See 38 C.F.R. § 4.86. If the puretone threshold is greater than 55 decibels at each of four specified frequencies, 1000 Hertz, 2000 Hertz, 3000 Hertz and 4000 Hertz, VA must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). If the puretone threshold is 30 decibels or less at 1000 Hertz and simultaneously 70 decibels or more at 2000 Hertz, VA must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next highest numeral for consideration. Each ear is evaluated separately. 38 C.F.R. § 4.86(b). In February 1960, the RO issued a rating decision which granted service connection and a noncompensable evaluation for otosclerosis of the right ear was assigned, effective from September 1958. In April 2004, a VA audiological evaluation was conducted. The examiner noted the Veteran's complaints of decreased hearing over the years, with the Veteran stating that his greatest difficulty was having to turn the television louder. An audiological examination was conducted and revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 85 70 60 65 60 LEFT 70 60 45 60 80 The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 64 decibels in the right ear and 61 decibels in the left ear. The report also noted speech recognition ability of 88 percent in the right ear and 96 percent in the left ear. The report concluded with a diagnosis of moderate to severe mixed hearing loss, bilaterally. In December 2004, the Veteran filed his present claim seeking a compensable evaluation for his service-connected otosclerosis of the right ear. In January 2005, a VA audiological evaluation was conducted. The examination report noted the Veteran's complaints of hearing loss. An audiological examination was conducted and revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 80 70 60 65 55 LEFT 70 60 45 50 65 The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 63 decibels in the right ear and 55 decibels in the left ear. The report also noted speech recognition ability of 96 percent in both the right and left ears. The examiner noted that hearing levels were similar to those shown on his April 2004 examination, and that the Veteran's hearing levels were apparently stable at that time and not expected to improve. The report concluded with a diagnosis of moderate to severe mixed hearing loss, bilaterally. In August 2010, a video conference hearing was held before the Board. At the hearing, the Veteran testified that he worked as a chemist following his separation from military service. He indicated that he had retired 10 years earlier. He reported that his poor hearing ability caused problems when he last work, and that he could have lost his job had he not obtained hearing aids. He reported currently having difficulty hearing in background noise, and also having trouble hearing his television. In October 2010, a VA audiological evaluation was conducted. The VA examiner noted that the Veteran's claims file had been reviewed. The examination report noted that the Veteran had the normal difficulties of hearing impaired persons, in that he experienced the most difficulty in noisy environments, and had difficulty hearing his television. The report noted that hard-of-hearing individuals can generally function in their occupations, as well as daily activities, with appropriate and current hearing aids. An audiological examination was conducted and revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 75 75 60 75 65 LEFT 80 65 55 60 80 The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 69 decibels in the right ear and 65 decibels in the left ear. The report also noted speech recognition ability of 94 percent, bilaterally. In November 2010, a VA examination for ear disease was conducted. The VA examiner noted that the Veteran's claims file had been reviewed. Physical examination of the right ear revealed the auricle, external canal, and mastoids to be within normal limits. The report noted that the Veteran had scarring on his tympanic membrane from previous surgery. The report concluded with a diagnosis of mixed hearing loss, bilaterally. The Veteran's otosclerosis of the right ear is rated on the basis of hearing impairment. 38 C.F.R. § 4.87, Diagnostic Codes 6202. When evaluating hearing impairment which is service-connected in only one ear, the nonservice-connected ear will be assigned a Roman numeral designation for hearing impairment of I for purposes of applying Table VII. See 38 C.F.R. § 3.383 (2012); see also 38 C.F.R. § 4.85(f). Special consideration for hearing impairment is provided when a service-connected single ear hearing loss warrants a disability rating of 10 percent or more and the other, nonservice-connected ear meets the criteria for a hearing loss disability for VA purposes. 38 C.F.R. 3.385 (2012). The severity of Veteran's service-connected right ear hearing loss does not meet this standard, and special consideration under the provisions of 38 C.F.R. § 3.383 is not warranted. The April 2004, January 2005, and October 2010 VA audiological examinations demonstrate that under Table VI of the Rating Schedule, the Veteran's right ear hearing impairment has been manifested by no more than Level III hearing acuity. See 38 C.F.R. § 4.85, Table VI. However, the right ear hearing loss shown by each of these examinations qualifies as an exceptional pattern of hearing impairment. 38 C.F.R. § 4.86(a). Pursuant to Table VIa of the Rating Schedule, the Veteran's right ear hearing impairment has been manifested by Level V hearing acuity on each of these examinations. See 38 C.F.R. § 4.85, 4.86, Table VIA. Using Table VII, Level V hearing acuity in the service-connected right ear and Level I hearing acuity in the nonservice-connected left ear results in a noncompensable evaluation for bilateral hearing impairment. See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. Disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Thus, based on the audiometric findings, the noncompensable rating already assigned to the Veteran's service-connected bilateral ear hearing loss is appropriate, and entitlement to a compensable evaluation for bilateral hearing loss is not warranted at any time during the appeal period. Hart v. Mansfield, 21 Vet. App. 505 (2007). Generally, evaluating a disability using either the corresponding or the analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2012). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id.; see also Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366(Fed. Cir. 2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, the Rating Schedule contemplates the Veteran's disability picture, and the assigned schedular evaluation is adequate, and no referral is required. The Board finds that the Veteran's hearing disability picture is not so unusual or exceptional in nature as to render the assigned rating inadequate. The Veteran's service-connected right ear otosclerosis is evaluated based on impairment of auditory acuity pursuant to Diagnostic Code 6100, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability. 38 C.F.R. § 4.85. Over the period of the appeal, the Veteran's right ear hearing impairment was manifested by no more than a numeric designation of Level III. Id. Moreover, in specific cases of hearing impairment, such as the Veteran's, the Rating Schedule provides for exceptional patterns of hearing loss. 38 C.F.R. § 4.86. Accordingly, in this case, the Veteran's right ear hearing impairment was assigned a numeric designation of Level V. The examiner's considered the Veteran's report that he experienced increasing difficulty understanding conversational speech in background noise and hearing the television. However, when comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Veteran's experiences are congruent with the disability picture represented by a noncompensable disability rating. The October 2010 VA examiner concluded that the Veteran reported the usual difficulties of hearing impaired persons in that he experienced the most difficulty in noisy environments, and had difficulty hearing his television. Compensable ratings are provided for by the regulations for certain manifestations of bilateral hearing loss, but the medical evidence demonstrates that those manifestations are not present. The criteria for a noncompensable rating reasonably describe the Veteran's disability level and symptomatology throughout the pendency of this appeal. Consequently, the Board concludes that a schedular evaluation is adequate and that referral of the Veteran's case for extraschedular consideration is not required. See 38 C.F.R. § 4.85, 4.86, 4.87, Diagnostic Codes 6100, 6202; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to a compensable evaluation for otosclerosis of the right ear, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A compensable evaluation for otosclerosis of the right ear is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs