Citation Nr: 1305683	
Decision Date: 02/15/13    Archive Date: 02/21/13

DOCKET NO.  10-43 814	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUE

Entitlement to a compensable rating prior to August 2, 2012, and to a rating in excess of 50 percent from August 2, 2012, for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A.G. Alderman, Counsel






INTRODUCTION

The Veteran had active service from February 1955 to October 1957.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.

The Board remanded this matter in April 2012 for additional development, which has been completed.

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

Resolving reasonable doubt in favor of the Veteran, he has had level VIII hearing acuity bilaterally for the entire pendency of the claim.


CONCLUSION OF LAW

The criteria for a 50 percent rating prior to August 2, 2012, for bilateral hearing loss have been met; the criteria for a rating in excess of 50 percent at any time during the pendency of the claim have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.85, 4.86, Diagnostic Code 6100, Tables VI, VIA, VII (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b) (2012); 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 the claimant is expected to provide.  38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).  

For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant" diagnostic codes, and that the range of disability applied may be between 0% and 100% "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment."  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).

Here, the duty to notify was satisfied by way of a letter sent to the Veteran in June 2010 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter.  The letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence.

The duty to assist has been satisfied.  The RO has obtained VA outpatient treatment records.  The Board has reviewed the Veteran's physical claims file and file on the "Virtual VA" system to insure a total review of the evidence.  The Veteran submitted statements and was provided the opportunity to present testimony before the Board; however, he withdrew his request for a hearing.  He was afforded VA medical examinations in July 2010 and August 2012.  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).  Here, the examiners provided detailed reports indicating the current severity of the Veteran's hearing loss.  Therefore, the Board finds that the examination reports are adequate for rating purposes.

Significantly, 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 claim that has not been obtained.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Increased Ratings

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012).  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor.  38 C.F.R.    § 4.3 (2012).
Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21 (2012).  Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the veteran's disability in reaching its decision.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings."  See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008).

The Veteran's bilateral hearing loss is evaluated as noncompensable (zero percent disabling) prior to August 2, 2012 and as 50 percent disabling from that date.  The RO rated the disability under 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100 (2012).  The basis for evaluating defective hearing is the impairment of auditory acuity as measured by puretone threshold averages within the range of 1000 to 4000 Hz and speech discrimination using the Maryland CNC word recognition test.  38 C.F.R. § 4.85.  Puretone threshold averages are derived by dividing the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hz by four.  Id.

The puretone threshold averages and the Maryland CNC test scores are given a numeric designation, which is then used to determine the current level of disability based upon a pre-designated schedule.  See Tables VI and VII in 38 C.F.R. § 4.85.  Under these criteria, the assignment of a disability rating is a "mechanical" process of comparing the audiometric evaluation to the numeric designations in the rating schedule.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1993).

The rating criteria at 38 C.F.R. § 4.86 addresses exceptional patterns of hearing loss.  When the puretone threshold at 1000, 2000, 3000, and 4000 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.  Each ear will be evaluated separately.  When the puretone threshold is 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz 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.  That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately.  As the following evidence reflects, the Veteran has not suffered from an exceptional pattern of hearing loss.

VA treatment records dated June 2010 indicate that the Veteran's speech recognition scores had decreased from 80-90 percent to 65-70 percent.  The records do not indicate whether testing was based on the Maryland CNC speech recognition test.  Other records dated between April and June 2010 show that his hearing aids were not loud enough and needed adjustment.

The Veteran had a VA examination in July 2010 at which time he reported inability to hear or understand conversation.  Testing showed as follows:


500
1000
2000
3000
4000
Right
40
45
70
85
105
Left
40
45
65
85
105

The average puretone threshold was 76.25 decibels in the right ear and 75 decibels in the left ear.  The Maryland CNC speech recognition score was 90 percent in the right ear and 88 percent in the left ear.  The examiner said the disability will have a negative impact every time the Veteran attempts to participate in conversations.  Applying the average puretone threshold and speech recognition scores to Table VI, 38 C.F.R. § 4.85, the values correspond to a numeric designation of "III" for the right ear and "III" for the left ear.  These combined numeric designations result in a rating of 0 percent under Diagnostic Code 6100.  38 C.F.R. § 4.85, Table VII.

The Board also considered findings from an August 2010 audiology test.  Test results were submitted in graph form; however, the Board may interpret graphical representations of audiometric data and convert it to numerical data in its role as a fact finder as long as the graphical representations are clear.  See Kelly v. Brown, 7 Vet. App. 471 (1995); Hall v. Nicholson, 21 Vet. App. 80 (2006) (unpublished) (stating that the U.S. Court of Veterans Claims (Court) held in Kelly that the Court could not interpret graphical data from a hearing evaluation and convert it to numerical data because this involved fact finding, but there was no indication in the Court's decision that the Board is precluded from doing so as a fact finder).  This testing showed audiometric thresholds as follows:


500
1000
2000
3000
4000
Right
35
50
85
100
115
Left
40
50
80
105
115

The average puretone threshold was 88 decibels in both ears.  Speech recognition scores are available; however, because testing does not indicate that the scores are based on the Maryland CNC test, the audiogram is inadequate for rating purposes.  Table VIA provides for numeric designations of hearing impairment based only on puretone threshold average, however, the Table may only be used as specified in 38 C.F.R. §§ 4.85 and 4.86, circumstances that are not applicable in this case.  Specifically, the examiner did not certify that the use of the speech discrimination test would not be appropriate and the Veteran does not exhibit exceptional patterns of hearing loss.  While a rating cannot be determined based on this audiogram, the Board finds that the puretone thresholds show a significant worsening of the Veteran's hearing loss since his July 2010 testing. 

The Veteran had another VA examination in August 2012.  The examiner found that he had significant bilateral hearing loss with reduced word recognition.  He could be expected to encounter residual difficulty understanding conversation even while wearing his hearing aides.  Testing showed as follows:


500
1000
2000
3000
4000
Right
45
50
70
95
105
Left
45
45
75
95
95

The average puretone threshold was 80 decibels in the right ear and 78 decibels in the left ear.  Maryland CNC speech recognition scores were 54 percent in the right ear and 58 percent in the left ear.  Applying the average puretone threshold and speech recognition scores to Table VI, 38 C.F.R. § 4.85, the values correspond to a numeric designation of "VIII" for both ears, resulting in a rating of 50 percent under Diagnostic Code 6100.  38 C.F.R. § 4.85, Table VII.

In his claim, the Veteran said he had trouble hearing and understanding people.  In the notice of disagreement, he said his hearing had worsened and that he required new hearing aids.  In his substantive appeal, he said his July 2010 VA examination did not include the Maryland CNC speech recognition test and argued that the examination report was inadequate for rating purposes.  His examining doctor told him that his hearing loss was at least 10 percent disabling.

In his March 2012 argument, the Veteran pointed out that a June 2010 VA treatment record said speech recognition scores had decreased from 80-90 percent to 65-70 percent but that in July 2010, scores were 88-90 percent.  He argued that the July 2010 testing was not accurate or consistent with past results.  While it is unclear whether the June 2010 provider was using the Maryland CNC speech recognition test, the August 2012 examination showed speech recognition at 54 and 58 percent, a sharp decrease in test results since July 2010 but consistent with the decrease noted in June 2010.  Thus, it appears that the speech recognition test results in July 2010 may have been anomalies.

The June 2010 treatment note indicates that the actual Audiogram Display from the testing done was in "Tools".  Emails, dated in June and September 2010 between RO staff reflects that the RO tried to get the Audiogram Display in order to place it in the claims file.  Unfortunately, this was not accomplished.  The next item in the claims file is a graph of an audiogram done in August 2010.  

Even more unfortunate is the fact that the Board missed the omission of the June 2010 Audiogram Display when it remanded the claim in April 2012, and so the Board did not order the RO to obtain the Audiogram Display and put it in the claims file or on Virtual VA so that the Board could review it.  This is necessary because the Board does not have access to CAPRI, the computer system for VA medical records, and therefore does not have access to "Tools" in order to be able to view the electronic version of the Audiogram Display.  Instead, the Board can only review what is in the claims file in paper form or electronic records that have been included in Virtual VA from CAPRI by the RO staff.  The Board, unlike the RO staff, cannot view medical records in CAPRI.

The Board is not going to remand the case again.  Instead, based on the entirety of the evidence and resolving reasonable doubt in favor of the Veteran, the Board finds that a 50 percent rating should be granted for the entire pendency of the claim.  The August 2010 examination revealed puretone thresholds similar to the August 2012 results while speech recognition scores reported in June 2010 are in line with the results found in August 2012.  Further supporting the finding is the July 2010 VA examiner's opinion that the disability would have a negative impact every time the Veteran attempted to participate in conversations and the Veteran's statements as to the severity of his disability.

A rating in excess of 50 percent is not warranted for any period during the pendency of the claim based on the mechanical process of comparing the audiometric evaluation to the numeric designations in the rating schedule.  38 U.S.C.A. 5110 (West 2002); see also Hart, 21 Vet. App. at 509.

The Board has also considered whether referral for extraschedular evaluation is warranted.  Generally, evaluating a disability using either the corresponding or 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) (2012).

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, a task performed either by the RO or the Board.  Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (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, initially, 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, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. 

Here, the Veteran has submitted no evidence showing that this disorder has markedly interfered with his employment status beyond that interference contemplated by the assigned evaluation, and there is also no indication that this disorder has necessitated frequent, or indeed any, periods of hospitalization during the pendency of this appeal.  As such, the Board finds that the schedular criteria is adequate and that it is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1), which concern the assignment of extra-schedular evaluations in "exceptional" cases.  See Thun v. Peake, 22 Vet. App. 111 (2008).

In summary, resolving reasonable doubt in favor of the Veteran, the Board finds that the assignment of a 50 percent rating for bilateral hearing loss for the entire pendency of the claim is warranted.  Therefore, the appeal will be granted.



ORDER

A 50 percent rating for bilateral hearing loss is granted prior to August 2, 2012.

A rating in excess of 50 percent for bilateral hearing loss at any time during the appeal period is denied.



____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs