Citation Nr: 1306114	
Decision Date: 02/21/13    Archive Date: 02/27/13

DOCKET NO.  05-35 226	)	DATE
	)
	)

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


THE ISSUE

 Entitlement to a compensable disability rating for service-connected bilateral hearing loss prior to May 21, 2012 and in excess of 20 percent from May 21, 2012.  


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Michael Holincheck, Counsel
INTRODUCTION

The Veteran had active duty service from May 1951 to March 1962

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.

The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in March 2012.  A transcript of the hearing is associated with the claims folder.

The Veteran's case was previously before the Board in August 2012.  At that time, the issue of entitlement to service connection for posttraumatic stress disorder (PTSD) was on appeal.  The issue was remanded for additional development.

The Veteran was granted entitlement to service connection for PTSD by way of a rating decision dated in November 2012.  He was provided notice of the rating action in January 2013.

Although the one-year period to submit a notice of disagreement with the rating action has not yet expired, there is no indication in the claims folder that the Veteran has expressed any disagreement with the November 2012 action that granted service connection.  See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (notice of disagreement (NOD) regarding disability compensation level separate from prior NOD regarding issue of service connection).  Consequently, the Board does not have jurisdiction to address any downstream element associated with the now service-connected PTSD.  

The Board previously identified that the issue of entitlement to service connection for a lumbar spine disability was raised by the Veteran in June 1990.  It was noted that the issue had not been adjudicated by the Agency of Original Jurisdiction (AOJ).  As the Board did not have jurisdiction over the issue it was referred to the AOJ for appropriate action.

The issue was not addressed on remand by the AOJ.  Thus, the issue is again referred to the AOJ for such further development as may be necessary.  

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.  Prior to May 21, 2012, the Veteran's service-connected bilateral hearing loss was manifested by no worse than level I hearing for both ears.

2.  As of May 21, 2012, the Veteran's service-connected bilateral hearing has been manifested by no worse than level IV hearing the right ear and level VIII hearing in the left ear.  


CONCLUSION OF LAW

The criteria for a compensable rating prior to May 21, 2012, and in excess of 20 percent from May 21, 2012, for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.85, 4.86 Diagnostic Code (DC) 6100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 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 representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  VCAA notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability.  The notice should also advise the claimant to provide evidence as to the effect that the worsening has on the claimant's employment.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The Veteran was provided with VCAA notice in a pre-adjudication letter dated in October 2003.  This letter informed him of what evidence VA would obtain, of what evidence he was expected to provide, and of what assistance the VA could provide the Veteran in obtaining evidence from other agencies.  He was also asked to submit any medical reports he had.

His claim was adjudicated in May 2004.  An increased rating was denied at that time.

The Veteran was provided with additional notice specific to his increased rating issues then on appeal, to include his hearing loss disability, in April 2009.  The letter informed the Veteran of the criteria used to evaluate hearing loss disabilities.  He was further informed of how VA determines disability ratings.  

The Veteran's claim was re-adjudicated in February 2011.  An increased rating remained denied at that time.  He was issued a supplemental statement of the case (SSOC) that addressed the additional evidence added to the record and the basis for the continued denial for an increased rating.  

The Veteran has not disputed the contents of the VCAA notice in this case.  He was afforded a meaningful opportunity to participate in the development of his claim.  He did not identify any additional evidence pertinent to his hearing loss issue.  He testified as to specific problems he experienced as a result of his disability.  Thus, the Board is satisfied that the duty to notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied.

The Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claim.  The Veteran's service treatment records (STRs) were already of record.  The Veteran did not submit any additional medical evidence and did not identify any medical evidence for VA to obtain on his behalf in regard to his hearing loss.  Private and VA treatment records were obtained.  The Veteran was afforded several VA examinations.  He testified at a Travel Board hearing in support of his claim.  His case was remanded for additional development to include a current examination.

In regard to the VA examinations, the Board finds that the Veteran was provided with adequate examinations in March 2004, March 2008 and May 2012.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim).  The examiners provided applicable findings that were used to evaluate the Veteran's level of disability for his service-connected hearing loss.  The examination reports noted the Veteran's contentions as to what caused him the most difficulty from his hearing loss disability.  

The Board finds that VA has satisfied its duty to notify and assist.  The Veteran has not identified any other pertinent evidence, not already of record.  The Board is also unaware of any such evidence.



Background

The Veteran was granted service connection for bilateral hearing loss in February 1995.  He was awarded a noncompensable disability rating.  He submitted his current claim for an increased rating in August 2003.  He did not identify any specific problems with his hearing, only that he wanted an increase in his disability rating.

The Veteran was afforded an examination in March 2004.  Audiometric testing at that time demonstrated the following decibel losses at the tested frequencies:




HERTZ


Mar. 2004
1000
2000
3000
4000
Average
RIGHT
35
40
60
85
55
LEFT
35
45
60
85
56

The Veteran had speech recognition scores of 96 percent for the right ear and 92 percent for the left ear.  The examiner noted that the Veteran said he had difficulty in understanding speech at normal conversation levels and that people had to constantly repeat what they said to him.  He also said he had difficulty in hearing with background noise.  The Veteran was referred for evaluation for hearing aids.

The Veteran's claim for a compensable disability rating was denied in May 2004.  He submitted his NOD with that decision in August 2004.  He said he subjectively believed his speech discrimination was below 90 percent in both ears.  He said that machine tones could be heard but most speech was incomprehensible unless he could see the speaker's mouth.  He believed his hearing impairment was more severe than his current rating.

The Veteran was afforded a VA audiology examination in March 2008.  The Veteran said he experienced his greatest difficulty in understanding normal conversation.  He related he had specific problems in hearing female voices.  Audiometric testing at that time demonstrated the following decibel losses at the tested frequencies:




HERTZ


Mar. 2008
1000
2000
3000
4000
Average
RIGHT
20
25
60
90
49
LEFT
35
30
55
90
53

The Veteran had speech recognition scores of 96 percent for each ear.  

The Veteran testified at a Travel Board hearing in March 2012.  In regard to his hearing loss disability he reported that, unless he was looking at the speaker, he had difficulty in hearing women speak.  He said that when he watched television programs with females with his wife, he had problems understanding the female speakers.  He said he had been recommended for hearing aids but had not gotten them.  

The Board remanded the Veteran's case for additional development.

The Veteran was afforded a VA examination in May 2012.  The examiner reviewed the Veteran's claims folder and noted he had a history of hearing loss.  The examiner also addressed the functional limitations that resulted from the Veteran's disability.  In that regard, the Veteran reported that he had to say "what" a lot and ask people to repeat what they said.  He also said he had to watch a person's mouth to better understand what they said.  He continued to report difficulty in understanding women's' voices.  He related that he watched television programs with his wife and it was difficult to understand what the women said but he had no problems with understanding what the men said.

Audiometric testing at that time demonstrated the following decibel losses at the tested frequencies:




HERTZ


May 2012
1000
2000
3000
4000
Average
RIGHT
25
35
65
100
56
LEFT
70
70
90
105
84

The Veteran had speech recognition scores of 80 percent for the right ear and 76 percent for the left ear.  The examiner noted the presence of cerumen in both ears.  The Veteran was scheduled to have an appointment for removal of the cerumen in the near future.  The examiner stated that the Veteran was referred for an otolaryngology appointment due to his decreased hearing and mixed hearing loss in the left ear.  She said that medical management may improve test results for the left ear and recommended that the Veteran be tested again prior to any rating.

The Veteran's rating for his hearing loss disability was increased to 20 percent by way of a rating decision dated in November 2012.  The RO relied on the results of the May 21, 2012, as representative of evidence that showed an increase in the Veteran's disability and the increased rating was effective from the date of the examination.

The Board notes that it has reviewed VA treatment records that date from 2003 to 2012.  There are no treatment entries relating to the Veteran's hearing loss.  There is an outpatient otolaryngology consult from June 2012 that noted removal of cerumen in the left ear. The entry noted that the conductive portion of the Veteran's hearing loss in his left ear was likely due to the impacted cerumen.  The Veteran was to return to the clinic for an annual hearing test and hearing aid fitting when he desired.  The private medical evidence of record does not address the Veteran's hearing loss.

Entries in the VA treatment records note that the Veteran was last employed in 1988.  This fact is also supported by the Veteran's submission of a claim for a total disability evaluation based on individual unemployability (TDIU) in September 2005.  The Veteran was granted a TDIU rating by way of a rating decision dated in February 2011.  The effective date for the grant was as of August 18, 2003.

Analysis

Disability ratings are determined by the application of a schedule of ratings, 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).  Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7. Vet. App. 55, 58 (1994).  

Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings.  Id.  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 required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).

For increased rating claims, staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2008).  

Evaluations of defective hearing range from noncompensable to 100 percent.  This is 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 pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz.  The rating criteria establish eleven auditory acuity levels designated from I to XI.  Tables VI, VIa, and VII as set forth in the regulations are used to calculate the rating to be assigned.  See 38 C.F.R. § 4.85 Diagnostic Code 6100 (2012).

When the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral.  38 C.F.R. § 4.86(a) (2012).  Additionally, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral.  Thereafter, that numeral will be elevated to the next higher numeral.  38 C.F.R. § 4.86(b) (2012).

A review of the March 2004 and March 2008 VA audiometric studies demonstrates a level I hearing for both ears.  See 38 C.F.R. § 4.85, Table VI.  The combination of the two ears corresponds to a noncompensable disability rating.  See 38 C.F.R. § 4.85, Table VII.  

The results of the audiometric studies do not allow for application of 38 C.F.R. § 4.86(a) or (b) for the either ear based on those examinations. 

The May 2012 audiometric study provided results that showed level IV hearing loss in the right ear and level V hearing loss in the left ear.  As noted by the RO, this correlates to a 20 percent rating.  See 38 C.F.R. § 4.85, Table VII.  The results do not provide for consideration of 38 C.F.R. § 4.86(b) for either ear.  However, the Veteran did have thresholds of 55 or more for each of the tested frequencies in the left ear and that warrants consideration of 38 C.F.R. § 4.86(a).

In that regard, the Veteran had an average decibel loss of 84.  In reviewing Table VIa, that results in a level VIII.  This would be higher than the level V achieved through application of Table VI.  However, even with the application of 38 C.F.R. § 4.86(a), the Veteran's disability rating is no higher when applying the level VIII hearing in the left ear with the level IV hearing in the right ear.  A 20 percent rating is still the outcome.  See 38 C.F.R. § 4.85, Table VII.  The RO relied on this method to determine the Veteran's 20 percent rating in November 2012.

The assigned evaluation is determined by mechanically applying the rating criteria to certified test results.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  As such there is no basis to establish a compensable disability rating prior to May 21, 2012, or a disability rating in excess of 20 percent for the Veteran's bilateral hearing loss from May 21, 2012.  

The Board has also considered whether the Veteran's disability is so exceptional as to require consideration of an extraschedular rating.  In Thun v. Peake, the Court held that determining whether a claimant is entitled to an extraschedular rating is a three-step inquiry.  22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 2009).  The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate."  Id.  If the adjudicator determines that this is so, the second step of the inquiry requires the adjudicator to "determine whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization.  Id. at 116.  Finally, if the first two steps of the inquiry have been satisfied, the third step requires the adjudicator to refer the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extraschedular rating is warranted.  Id. 

The Veteran has not presented any evidence that his particular service-connected bilateral hearing loss results in a unique disability that is not addressed by the rating criteria.  He has not identified any interference in his daily life other than difficulty in understanding conversational speech if he is not looking at the person that is speaking or if it is a woman speaker.  There is no evidence of any interference with employment as the Veteran has not been employed at any time during the pendency of the appeal.  The Veteran's increased rating was granted despite the May 2012 examiner's recommendation that he be retested after the cerumen was removed from the left ear as she felt the results would provide a more accurate measurement of hearing loss.  There is no basis for referral of the case for consideration of an extraschedular disability evaluation.

The evidence of record is also sufficient for consideration of the functional effects of the Veteran's hearing loss disability.  See Martinak v. Nicholson, 21 Vet. App. 447 (2007).  The above discussion addresses the Veteran's complaints and results of the findings of the multiple examinations.  There is no objective evidence that any of the VA examinations were not conducted in accordance with the requirements found at 38 C.F.R. § 4.85(a).  There is no impact on employment as the Veteran has been unemployed since 1988.  He has not alleged he has sought employment and was not hired or was hindered in obtaining employment because of his hearing loss.  The examiners and the Veteran's statements and testimony relate his complaints of how background noise affected the Veteran's hearing and his difficulty in hearing women's' voices.  Thus, the evidence of record is adequate to assess the Veteran's hearing loss disability.

The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits.  Therefore, the Board is unable to identify a reasonable basis for granting a disability rating in excess of those already assigned at any time during the pendency of the current appeal.  Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011).


ORDER

Entitlement to a compensable disability rating prior to May 21, 2012, and a disability rating in excess of 20 percent from May 21, 2012, for service-connected bilateral hearing loss, is denied.



____________________________________________
MICHAEL D. MARTIN 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs