Citation Nr: 1305903 Decision Date: 02/20/13 Archive Date: 02/27/13 DOCKET NO. 09-38 954 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a disability rating in excess of 10 percent for service-connected bilateral hearing loss before June 12, 2012 and in excess of 30 percent after. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from July 1964 to September 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida and the Appeals Management Center in Washington, D.C. The Veteran testified before the undersigned Veterans Law Judge at January 2012 Travel Board hearing, and a transcript of this hearing is of record. In May 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to afford the Veteran a VA medical examination. The action specified in the May 2012 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. Prior to June 12, 2012, left and right ear hearing loss was at worst, equivalent to level IV hearing. 2. From June 12, 2012, left and right ear hearing loss was at worst, equivalent to level VI hearing. CONCLUSIONS OF LAW 1. Prior to June 12, 2012, the criteria for entitlement to a disability rating in excess of 10 percent for service connection bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.85 Diagnostic Code 6100 (2012). 2. From June 12, 2012, the criteria for entitlement to a disability rating in excess of 30 percent for service connection bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.85 Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R., Part 4 (2012). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (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. 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 the Veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the U.S. Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then-current severity of the disorder. In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126. Hart appears to extend Fenderson to all increased rating claims. The Veteran was originally granted service connection for bilateral hearing loss in a February 2001 rating decision, effective August 1999, and assigned an initial non-compensable evaluation. In December 2007, the Veteran filed a claim for an increased rating for his bilateral hearing loss. In a March 2008 rating decision, the RO granted increased the Veteran's disability rating to 10 percent, effective December 2007. In an October 2012 rating decision by the Appeals Management Center, the Veteran's rating was again increased to 30 percent, effective June 2012. Evaluations of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2012). To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters. Id. Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Id. Where impaired hearing is service connected in only one ear, the non-service connected ear will be assigned a Roman numeral I rating purposes. Id. Rating criteria include an alternate method of rating exceptional patterns of hearing as defined in 38 C.F.R. § 4.86. Under 38 C.F.R. § 4.86, exceptional patterns of hearing impairment are considered to exist for VA purposes under certain circumstances. First, exceptional patterns of hearing impairment are considered to exist for VA purposes if the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 hertz) is 55 decibels or more. If that is the case, then, the rating specialist must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever of these two tables results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). Second, exceptional patterns of hearing impairment are also considered to exist for VA purposes if the puretone threshold is 30 decibels or less at 1000 hertz and 70 decibels or more at 2000 hertz. If that is the case, then the Roman numeral designation for hearing impairment will be selected from either Table VI or Table VIa, whichever results is the higher numeral, and that numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). The utilization of Table VI logically requires there be a finding available for the speech recognition score pertaining to the ear under evaluation of that table. Of record are results from VA compensation examinations from February 2008, November 2009, and June 2012. The Veteran has also submitted several private audiological evaluations. The February 2008 VA examination yielded test results of puretone thresholds in the right ear at 1000, 2000, 3000, and 4000 Hertz of 30, 60, 80, and 80 decibels, respectively, for an average over the four frequencies of interest of 62.5 decibels. Test results of puretone thresholds in the left ear at 1000, 2000, 3000, and 4000 Hertz of 20, 55, 65, and 70 decibels, respectively, for an average over the four frequencies of interest of 52.5 decibels. Speech audiometry test results revealed speech recognition ability of 76 percent in both the right and left ears. These results show that the Veteran does not have exceptional hearing loss in the either ear as contemplated in 38 C.F.R. § 4.86. Application of 38 C.F.R. § 4.85 Table VI to the February 2008 measurements results in assignment of Roman Numeral IV to the right ear and Roman Numeral IV to the left ear, for the purpose of determining a disability rating. A 10 percent rating is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row IV with column IV. Additional VA testing was performed in November 2009. The November 2009 examination yielded test results of puretone thresholds in the right ear at 1000, 2000, 3000, and 4000 Hertz of 30, 65, 80, and 90 decibels, respectively, for an average over the four frequencies of interest of 66.25 decibels. Puretone thresholds in the left ear at 1000, 2000, 3000, and 4000 Hertz were 20, 60, 70, and 80 decibels, respectively, for an average over the four frequencies of interest of 57.5 decibels. Speech audiometry test results revealed speech recognition ability of 76 percent in the right ear and 84 percent in the left ear. These results show that the Veteran does not have exceptional hearing impairment in either ear as contemplated in 38 C.F.R. § 4.86. Application of 38 C.F.R. § 4.85 Table VI to the November 2009 measurements results in assignment of Roman Numeral III to the left ear and Roman Numeral VI to the right ear, for the purpose of determining a disability rating. A 10 percent rating is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row III with column VI. The Veteran was afforded a third VA examination in June 2012. The June 2012 examination yielded test results of puretone thresholds in the right ear at 1000, 2000, 3000, and 4000 Hertz of 55, 80, 90, and 95 decibels, respectively, for an average over the four frequencies of interest of 80 decibels. Puretone thresholds in the left ear at 1000, 2000, 3000, and 4000 Hertz were 30, 75, 75, and 75 decibels, respectively, for an average over the four frequencies of interest of 64 decibels. Speech audiometry test results revealed speech recognition ability of 70 percent in the right ear and 80 percent in the left ear. These results show that the Veteran has exceptional hearing impairment in the left ear as contemplated in 38 C.F.R. § 4.86. Application of 38 C.F.R. § 4.85 Table VI to the June 2012 measurements results in assignment of Roman Numeral VI to the right ear and Roman Numeral IV to the left ear, for the purpose of determining a disability rating. A 20 percent rating is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row IV with column VI. Application of 38 C.F.R. § 4.86 Table VIA to the June 2012 measurements results in the assignment of Roman Numeral VI to the left ear. A 30 percent rating is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row VI with column VI. The Veteran was assigned the higher of these two ratings. The February 2008, November 2009, and June 2012 audiological test results do not provide for assigning a higher disability rating for the Veteran's bilateral hearing loss for any period on appeal. In Martinak v. Nicholson, 21 Vet. App. 447 (2007) the Court held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak, 21 Vet. App. at 455. Here, the VA examiners did this, noting that the Veteran has difficulty understanding women and children, difficulty hearing when there is background noise, and difficulty hearing the television and movies. Additionally, at his January 2012 Travel Board hearing the Veteran testified in detail regarding the difficulty he has communicating with others due to his diminished hearing, providing additional evidence concerning the functional effect of the Veteran's hearing impairment on his daily life. Both the Veteran and his spouse testified that the Veteran has difficulty hearing others, particularly in social situations, and that his diminished hearing acuity interferes with his ability to participate in many activities he previously enjoyed such as watching a movie, attending church, and socializing with his family and friends. Also of record are VA and private medical records, which document complaints of worsening bilateral hearing loss. The private medical records include privately administered audiograms, from various treatment providers, including Dr. R.M.L., Jacksonville Hearing and Balance Institute, Dr. H.F., and Dr. R.T.S.. Unfortunately, the results of these examinations are in graphical form, which the Board is not qualified to interpret. The June 2012 VA examiner did, however, interpret some of the private audiograms of record dated between February 2010 and June 2011 and such reported puretone results do not appear to be significantly different from that obtained on VA examination. See Kelly v. Brown, 7 Vet. App. 471, 474 (1995) (indicating, among other things, that the Board is empowered to remand uninterpreted audiograms for interpretation). Additionally, if the Maryland CNC test was administered, either the results are not of record or the identity of the speech discrimination test used by the audiologist are not specified. Thus, because the private audiological examinations the Veteran has submitted do not conform to the requirements of the rating criteria, the Board finds that these private audiograms have little probative value. While these audiograms confirm that the Veteran suffers from severe high frequency hearing loss bilaterally, because they do not conform to the standards set forth in 38 C.F.R. § 4.85 regarding the evaluation of hearing impairment for rating purposes, they are inadequate as a basis to award a higher disability rating for any period on appeal. The Veteran has continued to state throughout the pendency of this appeal that his hearing has worsened, and the Board recognizes that the Veteran is competent to report his subjective perception of hearing loss. Additionally, the Veteran's family and friends have submitted statements in which they testify that that the Veteran has had an observable hearing disability for many years which has subjectively worsened over the past several years. However, under VA regulations, evaluations for hearing loss disabilities are based on the results of objective audiological testing, and the Veteran has not met the criteria for a higher schedular rating for any period on appeal. Accordingly, the Board has also considered whether the Veteran's disability warrants referral for extraschedular consideration. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2012). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Board finds that the schedular rating criteria reasonably reflect the Veteran's disability levels and symptomatology. In this case, it does not appear that the Veteran has an "exceptional or unusual" disability; he merely disagrees with the assigned evaluation for his level of impairment. The symptom of his service-connected hearing loss, difficulty hearing, is not unusual or different from that contemplated by the schedular criteria. While the Veteran complained in an October 2012 letter that he suffers from headaches and dizziness/vertigo, which he appears to relate in some way to his hearing loss, the Board can find no medical evidence of a relationship between these recently reported symptoms and the Veteran's longstanding hearing loss. The available schedular evaluations for the Veteran's service-connected disability are adequate. Referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. Further inquiry into extraschedular consideration is not required. See Thun, supra. For all of the above reasons, entitlement to an increased rating for the Veteran's service-connected bilateral hearing loss disability for any period on appeal must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Board also notes that in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the Court clarified VA's notice obligations in increased rating claims. The Federal Circuit recently reversed the Veterans Court's decision in Vazquez-Flores, finding that VA is not required to tailor § 5103(a) notice to individual Veterans or to notify them that they may present evidence showing the effect that worsening of a service-connected disability has on their employment and daily life for proper claims adjudication. For an increased rating claim, section § 5103(a) now requires that the Secretary notify claimants generally that, to substantiate a claim, they must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd sub. nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that notice specific to individual Veterans is no longer required in increased compensation claims). Here, the VCAA duty to notify was satisfied by a letter sent to the Veteran in February 2008. This letter informed the Veteran of what evidence was required to substantiate his claim, as well as of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records, as well as VA treatment records. The Veteran submitted private medical records and was provided an opportunity to set forth his contentions during the January 2012 Travel Board hearing before the undersigned Veterans Law Judge. The Veteran was afforded a VA audiological examination in February 2008, November 2009, and June 2012. These examinations are based upon review of the claims folder, and thoroughly discuss the nature and severity of the Veteran's disability as well as the functional impairments resulting therefrom. These examination reports are adequate for rating purposes. See 38 C.F.R. § 4.2. 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 the Veteran 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). ORDER Prior to June 12, 2012, a disability rating in excess of 10 percent for service-connected bilateral hearing loss is denied. From June 12, 2012, a disability rating in excess of 30 percent for service-connected bilateral hearing loss is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs