Citation Nr: 1306278 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 08-35 778 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a compensable evaluation for the service-connected bilateral hearing loss disability. 2. Entitlement to an evaluation in excess of 20 percent for the service-connected bilateral hearing loss disability. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran served on active duty from September 1953 to September 1955. This matter comes before 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, which evaluated the Veteran's service-connected bilateral hearing loss disability as noncompensable. The Veteran disagreed and perfected an appeal. When the case was most recently before the Board in May 2012, it was remanded for compliance with directives set forth in previous Board remands dated in October 2010 and January 2011. The case has been returned to the Board again for appellate review. The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claims. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on 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). The issues of entitlement to a rating in excess of 20 percent for bilateral hearing loss disability and TDIU are addressed in the Remand following this Decision. FINDING OF FACT The Veteran's hearing loss is Level V in the right ear and the left ear. CONCLUSION OF LAW The criteria for the assignment of a 20 percent compensable evaluation for bilateral hearing loss disability are met. 38 U.S.CA. § 1155 (West 2002); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the effective-date element of his claim for a 20 percent rating for bilateral hearing disability. In addition, the Board has determined that the evidence currently of record is sufficient to substantiate the Veteran's claim for a 20 percent rating for this disability. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2012). Increased Evaluation for Bilateral Hearing Loss Disability Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4 (2012). 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. See 38 C.F.R. § 4.7. A request for an increased rating must be viewed in light of the entire relevant medical history. See 38 C.F.R. § 4.1 (2012); see also Peyton v. Derwinski, 1 Vet. App. 282, 287 (1991). However, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). In evaluating service-connected hearing loss disability, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Service connection for bilateral hearing loss disability was granted in a September 2006 rating decision, notice of which was mailed to the Veteran on October 2, 2006. A noncompensable evaluation was assigned under Diagnostic Code 6100, effective in March 2006. The current claim for increased rating was received at the RO October 29, 2007. The Veteran alleged at that time that his condition was, "much worse than previously rated." He reported that he received all his treatment at the VA medical center (VAMC) in Orlando, and he requested that he be scheduled for a "C & P" examination. Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold and as measured by pure tone audiometric tests in the frequencies 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 audiometric examinations are conducted using a controlled speech discrimination test (Maryland CNC) together with the results of a pure tone audiometry test. The vertical lines in Table VI (38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel (dB) 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 dB loss. The percentage evaluation is found from Table VII (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 to the numeric designation level for the ear having the poorer hearing acuity. For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent. See 38 C.F.R. § 4.85. Table VIa is used to assign a rating based on puretone average alone 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 38 C.F.R. § 4.86. See 38 C.F.R. § 4.85(c) (2012). The provisions of 38 C.F.R. § 4.86(a) provide that when the pure tone thresholds 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. The provisions of 38 C.F.R. § 4.86(b) provide that when the pure tone threshold is 30 dB or less at 1000 hertz, and 70 dB or more at 2000 hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results is the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. VA treatment records dated from September 2006 through October 2010 show that the Veteran was seen in the audiology clinic on October 26, 2006, more than a year prior to his claim. Parenthetically, the Board notes that at that time he saw the audiologist for follow-up on the use of new hearing aids. The Veteran was doing well with the new aids and told to follow-up if he experienced hearing aid problems. In an October 2009 interdisciplinary report, he reported being hard of hearing. In a January 2010 social work note, it was noted that he asked his social worker why he was not getting 100 percent service connection for his hearing loss when his outside physician says he is "100% not getting any hearing back." He was told to speak to a veterans service officer. The treatment records do not endorse that the Veteran has difficulty communicating and seeking VA medical care due to any hearing issues. The VA audiological examination conducted in November 2007 obtained inconsistent results. At the examination, the Veteran reported difficulty with hearing loss and tinnitus (also service-connected), with the most difficulty reported while watching television. Pure tone threshold averages on audiometric examination were reported as 0 decibels (dB) bilaterally. The audiologist reported that the test results were unreliable. She observed that the Veteran could not repeat back any words for speech recognition threshold (STR) at the limits of the audiometer, yet could carry on a conversation with the examiner without significant difficulty. Pure tone thresholds were noted to be unreliable and inconsistent. The Veteran was reportedly reinstructed many times, but reliability did not improve. Private treatment records include a report of audiogram dated in October 2008 from Orlando Ear, Nose and Throat Associates conducted by a state-licensed audiologist. On this examination, pure tone thresholds in decibels (dB) for the four frequencies used for VA evaluation were as follows: HERTZ 1000 2000 3000 4000 RIGHT 85 95 NR NR LEFT 95 105 NR NR (NR indicates no response). The Veteran's speech recognition, not measured using the Maryland CNC test, were poor in both ears, 0 percent in the right ear and 16 percent in the left ear. These results indicated a severe to profound hearing loss. An accompanying narrative indicates that the Veteran reported that he was recently told hearing aids would be of no benefit to him. He can hear almost nothing. Examination of the ears was normal. It was noted that SRT was 75 on the right and 80 on the left. A follow-up report in January 2009 reflects that the Veteran decided against cochlear implant surgery, and that his hearing would be treated by observation in keeping with the Veteran's wishes. The Board notes that the Orlando Ear, Nose and Throat Associates report is not adequate for rating purposes because it fails to contain all information necessary to determine a VA disability rating, specifically puretone thresholds at 3000 and 4000 Hertz and Maryland CNC speech discrimination testing. The Veteran was accorded another opportunity to participate meaningfully in VA audiological examination in October 2010, with results similar to those on the earlier VA examination. The examiner reviewed the claims folder and included a recitation of the medical history in the report. The Veteran reported difficulty in all listening situations. He reportedly had tried hearing aids in the past but they do not help. The examiner reported that the combined use of pure tone and speech recognition data is not appropriate in this case. Pure tone responses were inconsistent and the examiner was unable to establish reliable speech recognition thresholds (SRTs). Word recognition was not tested due to inability to establish pure tone thresholds or SRTs. There was poor inter-test reliability for middle ear status due to inability to obtain a seal for immitance testing. The Veteran was able to correctly respond to and follow instructions without visual cues when the examiner's voice was presented binaurally at 70 dB. However, he was unable to consistently repeat words below, at or above that level in either ear. Monitored live voice testing was attempted, and when words were presented at 65 dB in the right ear, the Veteran responded "play" to "baseball," "fly" to "airplane," and "candy" to "ice cream," and then stopped providing responses. Otoscopy showed clear canals and tympanic membranes were visualized. Thus, the examiner concluded that pure tone test response was inconsistent and unreliable bilaterally, though the Veteran did correctly respond to questions and instructions provided without visual cues when the examiner's voice was presented binaurally at approximately 70 dB. Though hearing loss was present, the examiner concluded that the degree of loss could not be determined due to the lack of reliable test results. Thus, the audiologist concluded that she could not determine the effects on occupational functioning and daily activities due to the lack of reliable test results. In January 2011, the Board remanded the matter again, citing multiple duty to assist issues. The Board notes that also for consideration was the January 2011 representative's contention that it would be incongruous that the Veteran would seek to sabotage his VA examination when he is seeking a higher rating. He accordingly questioned the reliability of the VA testing equipment. In February 2011, the Veteran underwent private audiology consultation at Southgate HearX. A graph report of this examination is of record. The diagnosis was sensorineural hearing loss. The examiner opined that the Veteran would benefit from assistive technology and visual cues. The Veteran was accorded another opportunity to participate meaningfully in VA audiological examination in March 2011. The audiologist reviewed the claims folder and included a recitation of the medical history in the report. On this examination, pure tone thresholds in decibels (dB) for the four frequencies used for VA evaluation were as follows: HERTZ 1000 2000 3000 4000 RIGHT 35 45 90 95 LEFT 40 55 85 90 The puretone average on the right was 66.25 and on the left it was 67.5. The Veteran's speech recognition scores were again too unreliable to score bilaterally. The examiner offered that pure tone results should only be used for rating purposes due to volunteer speech recognition scores being too unreliable to score. The Veteran did not attempt to repeat words even at levels of 40 dB HL above his volunteer pure tone thresholds. Behavior observations were inconsistent with his volunteer speech recognition. Further testing suggested normal middle ear function. The Veteran was noted to have mild to profound sensorineural hearing loss. He was able to verbally respond and localize the sound by raising his hand to the ear he heard it from. These results were considered an improvement from the November 2010 examination, but it was reiterated that speech recognition scores were too unreliable to score. The examiner felt that hearing loss caused significant occupational effects because the Veteran reported that he hears speech sounds as mumbles. He has someone drive him due to hearing loss. He does not use hearing aids but he feels that he did not benefit from them. The examiner felt that the hearing loss would not cause the Veteran to be unemployable, as most occupations do not set physical requirements for hearing. The Veteran was accorded another opportunity to participate meaningfully in VA audiological examination in July 2012. The audiologist reviewed the claims folder and included a recitation of the medical history in the report. The Veteran contended that he was unemployable due to hearing loss and tinnitus. As to the Maryland CNC list test, the examiner noted that the Veteran's results were too unreliable to score. After many reinstructions, the Veteran demonstrated unreliable pure tone results. The results were significantly elevated as compared to the 2011 VA audiogram results. The Veteran demonstrated a startle response at 70 dB, which is just slightly above that which he responded to as a threshold. During speech recognition, he did not repeat anything back when he was presented with the Maryland CNC list. He demonstrated much better hearing one-on-one in a quiet room setting. Normal middle ear function was suggested by testing. Again, the acoustic reflexes could not be tested due to probe seal leaks. No medical follow-up was needed. The examiner opined in the diagnosis section that the Veteran had a non organic component to his hearing loss, suspected, along with subjective bilateral tinnitus. She explained that the Veteran's volunteer responses were unreliable/invalid and not consistent with audiological findings/behavioral observations. His responses were unreliable and not consistent with medical findings even after repeated instructions. The examination results were not adequate for rating purposes. The disability had significant occupational effects, specifically noted to be hearing difficulty, but no effects on daily activities. The examiner concluded by stating that although the hearing loss would have significant occupational effects, it would not cause unemployability. The examiner pointed to the fact that the Veteran chooses not to wear hearing aids at this point and has not worn them for 2 to 3 years, though he reports that speech is mumbled to him and he has someone drive him around. The examiner noted in contrast to this assertion, the Veteran was able to answer questions during the interview in a quiet room setting without significant difficulties, and most occupations do not set physical requirements for hearing. Records were requested from the Social Security Administration (SSA), but a negative reply was received. In October 2012, after having been informed by VA that attempts to obtain his SSA records yielded a reply that the records had been destroyed, he responded by stating that he did not have SSA disability records and that he was on SSA retirement. Finally, in December 2012, the Veteran was afforded an additional VA examination as reflected in a Disability Benefits Questionnaire report. On this examination, pure tone thresholds in decibels (dB) for the four frequencies used for VA evaluation were as follows: HERTZ 1000 2000 3000 4000 RIGHT CNT CNT CNT CNT LEFT CNT CNT CNT CNT (CNT indicates Could Not Test) The pure tone and speech recognition responses volunteered were unreliable. The Veteran was provided with reinstruction but the results remained unreliable. In a quiet one-on-one environment, he was able to follow all directions and answer questions reliably. But he could not respond to pure tones until they were presented at a very loud level. He would respond to tasks and questions presented over 50 dB over the microphone, but he would not repeat back words at a more elevated level. During SRT he was provided with pauses, reinstruction and multiple word lists, however, speech was too unreliable to score. The tests results were deemed not valid for rating purposes because he did not respond consistently to pure tones and volunteered thresholds were elevated. Testing was attempted with both headphones and inserts. Speech discrimination score on Maryland CNC word list was also noted as CNT. The examiner noted language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of pure tone average and speech discrimination scores inappropriate. Finally, the examiner noted that the Veteran responded that hearing loss did not impact his daily living, including his ability to work. On review, the Board is left with one set of complete puretone threshold readings in the ratable frequencies, those reflected in the March 2011 VA examination report. All of the word recognition tests have been deemed unreliable. The examiner in March 2011 essentially indicated that the puretone thresholds from that examination should be used to evaluate the Veteran's hearing because the use of the speech discrimination tests is not appropriate in this case due to language difficulties and inconsistent speech discrimination scores. The Board also notes the December 2012 examination comment that language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., made combined use of pure tone average and speech discrimination scores inappropriate. Under the circumstances, Table VIa will be used to assign a rating based on puretone average alone. See 38 C.F.R. § 4.85(c) (2012). Applying the puretone averages of 66. 25 and 67.5, to Table VIA results in a numerical designation of V for each ear. Applying these values to Table VII results in a 20 percent rating for the Veteran's bilateral hearing loss disability. For the reasons stated above a 20 percent evaluation for bilateral hearing loss disability is warranted. The Board has considered whether staged ratings are appropriate. However, the findings concerning bilateral hearing loss disability are not sufficient to warrant staged evaluations less than 20 percent in the present case. See Fenderson, supra and Hart, supra. ORDER A 20 percent evaluation for bilateral hearing loss disability is granted, subject to the laws governing the award of monetary benefits. REMAND Additional development is required prior to Board review of the issues of entitlement to a rating in excess of 20 percent for bilateral hearing loss disability and TDIU. As to the increased rating claim, private treatment records include a February 2011 audiology graph report from Southgate HearX. However, the individual who conducted the examination declined VA's request to convert the report into numerical designations as reflected in a November 2012 note in the claims folder. The RO failed to provide notice consistent with 38 C.F.R. § 3.159(e) in reference to the this test. The Veteran should be notified of this pursuant to 38 C.F.R. § 3.159(e). The Board further notes that the Court held that a TDIU claim cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability. The Court in Rice also found that, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. In this case, there is evidence of record indicating that the Veteran believes he is unemployable due to hearing loss. At his November 2007 examination, he reported that he was a truck driver but he can no longer drive due to hearing loss. At his July 2012 examination, he contended that he was unemployable due to hearing loss and service-connected tinnitus. He reported that he was a truck driver who can no longer drive due to hearing loss. Under the circumstances, the Board finds that a TDIU claim has been raised in this case. As such, the Veteran should be afforded a VA examination to determine the current level of impairment caused by his service-connected disabilities. He should also be informed as to how to substantiate the claim for TDIU pursuant to 38 C.F.R. § 3.159 and he should be requested to return a claim form. In addition, as the front of the claims folder indicates that the Veteran had a rehabilitation and education folder that was retired, VA should attempt to obtain those records. As it appears that the Veteran is receiving ongoing treatment at the VA and private facilities for his hearing loss disability, additional treatment records should be associated with the claims folder. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2012), as to the November 2012 response from L.D., Au.D., Southgate HearX, regarding interpretation of the February 2011 hearing test. The RO or the AMC must notify the Veteran and (a) identify the specific information the AMC was unable to obtain; (b) briefly explain the efforts that the AMC made to obtain the information; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the information. The Veteran must then be given an opportunity to respond. 2. Inform the Veteran how to substantiate a claim an increased rating on the basis of TDIU pursuant to 38 C.F.R. § 3.159 and request that he complete a TDIU claim form. 3. The RO or the AMC should request that the Veteran identify any additional outstanding, pertinent medical records, to specifically include current treatment records and records pertaining to the Veteran's bilateral hearing loss disability and tinnitus. If, after making reasonable efforts to obtain named records the RO or AMC is unable to secure same, the RO or AMC must notify the Veteran and (a) identify the specific records the RO or AMC is unable to obtain; (b) briefly explain the efforts that the RO or AMC made to obtain those records; (c) describe any further action to be taken by the RO or AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 4. Obtain any additional recent VA treatment records pertaining to the Veteran. 5. Attempt to obtain the Veteran's VA rehabilitation and education folder. All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the RO or AMC must notify the Veteran and (a) identify the specific records the RO or AMC is unable to obtain; (b) briefly explain the efforts that the RO or AMC made to obtain those records; (c) describe any further action to be taken by the RO or AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 6. Then, the Veteran should be afforded a VA examination by an examiner with appropriate expertise to determine the current level of severity of all impairment resulting from the Veteran's service connected bilateral hearing loss disability. The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. The RO or the AMC should ensure that the examiner provides all information required for rating purposes. In particular, the examiner should be instructed to provide an assessment of the functional effects of the disability on the Veteran's daily activities and an assessment of the effects of the disability in an occupational setting. The examiner should determine the impact of his service-connected disabilities (hearing loss and tinnitus) on his employability. The examiner should review the pertinent information in the claims files in conjunction with the examination and indicate that such review has occurred. Then, the examiner is asked to opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected bilateral hearing loss and tinnitus disabilities are sufficient by themselves to preclude him from obtaining or maintaining substantially gainful employment consistent with his education and employment background. In this regard, the Veteran, who has work experience as a truck driver, reports that he is no longer able to drive due to his hearing loss disability. If the Veteran's service-connected disabilities do not singly or cumulatively render him unemployable, the examiner should report the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background. 7. The RO or the AMC should undertake any other development it determines to be warranted. Then, the RO or the AMC should readjudicate the Veteran's remaining claims on appeal based on a de novo review of the record. If the benefits sought on appeal are not granted to the Veteran's satisfaction, a Supplemental Statement of the Case should be furnished to the Veteran and his representative and they should be afforded the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). As noted above, this case has been advanced on the Board's docket. It also must be afforded expeditious treatment by the RO or the AMC. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs