Citation Nr: 1306730	
Decision Date: 02/27/13    Archive Date: 03/01/13

DOCKET NO.  07-23 199	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to an increased rating for bilateral hearing loss, currently assigned a 30 percent evaluation.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

K. Hudson, Counsel





INTRODUCTION

The Veteran had active service from February 1978 to January 1979.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of December 2006, which increased the evaluation for bilateral hearing loss from 10 percent to 30 percent.  The appeal was remanded by the Board in October 2010 and again in March 2012.

The United States Court of Appeals for Veterans Claims (Court) has held that a TDIU claim is part of an increased rating claim when such claim is raised by the Veteran or the record.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Although he is not presently working, there is no evidence, lay or medical, indicating that the Veteran is, or claims to be, unemployable due to service-connected bilateral hearing loss.  Accordingly, no discussion of the issue of entitlement to a TDIU is warranted.  


FINDING OF FACT

Throughout the appeal period, the Veteran's bilateral hearing loss has manifested by hearing acuity no worse than Level VI in his right ear and Level VII in his left ear, with no additional functional impairment or varying and distinct levels of severity.  


CONCLUSION OF LAW

The criteria for an evaluation in excess of 30 percent for bilateral hearing loss are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.85, 4.86, Diagnostic Code 6100 (2012).  



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Veterans Claims Assistance Act (VCAA) Compliance

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012).  In a December 2006 letter, prior to the initial adjudication of the claim, the RO advised the claimant of information necessary to substantiate the claim.  He was advised of various types of lay, medical, and employment evidence that could substantiate his claim, and of his and VA's respective obligations in obtaining such evidence.  

Also, in a May 2008 letter, the RO provided more detailed information concerning the information necessary to substantiate the claim for an increased rating.  The Veteran was informed of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., treatment records, or statements of personal observations from other individuals.  He was informed that a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), 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).  He was also provided with information regarding effective dates.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

Although this letter was not sent until after the initial adjudication of the claim, it was followed by readjudication and issuance of supplemental statement of the case in October, and remailed to a more current address for the Veteran in May 2012.  Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect).  Hence, the VCAA notice requirements have been satisfied.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159.  

VA also has a duty to assist the Veteran by making all reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c).  The Veteran's VA and service treatment records have been obtained, and he has not identified any relevant private treatment.  A VA examination was provided in April 2011, and an addendum was obtained in September 2011.  Together, these reports describe the disability in sufficient detail for the Board to make an informed decision.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  There is no evidence indicating that there has been a material change in the service-connected disorder since the last examination.  38 C.F.R. § 3.327(a).  

Pursuant to the Board remand in October 2010, outstanding VA treatment records were obtained, and VA examinations were provided in April 2011 and July 2011, with an addendum opinion obtained in September 2011.  The audiology examination contained all necessary findings, including an opinion as to effect that his hearing loss has on his activities of daily living.  An opinion as to the effect on work was not provided because the Veteran was noted to be unemployed.  Speech discrimination was not found to be inappropriate or unreliable. 

An opinion was also to be obtained as to whether the Veteran had any disorders of the ears separate and distinct from his service-connected bilateral sensorineural hearing loss and tinnitus (e.g., prior evaluations showed otalgia, aural fullness and flat tympanogram on the left), or whether any such complaints were symptoms of his service-connected bilateral sensorineural hearing loss.  However, the records obtained in connection with the remand development did not show otalgia, aural fullness or flat tympanogram.  Subsequent tympanograms in July 2009 and April 2011 were normal.  The presence of otalgia was specifically denied in July 2005.  The only symptom reported at that time was itching.  Therefore, because the examiner did not find any other symptoms to be present, it was not erroneous for the examiner to have omitted symptoms other than the itching from the opinion.  In this regard, the case involves the rating for already service-connected hearing loss, and thus McLain v. Nicholson, 21 Vet. App. 319 (2007), which holds that, in connection with a service connection claim, requirement of a current disability is satisfied if the claimant has the disability at any time during the pendency of that claim , is not applicable.  The examiner opined that the itching was separate and distinct from his service-connected bilateral hearing loss, and that it was not at least as likely as not that the itching was related to any injury or disease incurred in service or proximately due to, the result of, or aggravated by his service-connected bilateral sensorineural hearing loss.  Although no rationale was provided, the Board finds that this was harmless error, because the symptom of itching, alone, would not be separately compensable, or warrant a higher rating for bilateral hearing loss.  See 38 C.F.R. §§ 4.85, 4.86, 4.87 (2012).  In sum, the findings from the 2011 examinations and opinions are sufficient to rate the service-connected disability of bilateral hearing loss, and the correction of any minor deficiencies in strict compliance could not result in a higher rating; therefore, there has been substantial compliance with the remand development order.  Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  

Pursuant to the March 2012 Board remand, the Veteran was furnished with a copy of the October 2011 supplemental statement of the case, sent to his correct address.

All necessary notification and development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. Bernard v. Brown, 4 Vet. App. 384 (1993). Neither the appellant nor his representative has identified, and the record does not 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 appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. 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).

II.  Increased Rating-Bilateral Hearing Loss

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A § 1155; 38 C.F.R. Part 4.  Although the disability must be considered in the context of the whole recorded history, including service medical records, the present level of disability is of primary concern in determining the current rating to be assigned.  38 C.F.R. § 4.2 (2007); Francisco v. Brown, 7 Vet. App. 55 (1994); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  

The Veteran's hearing was normal on entrance into service in January 1978.  He had sustained an injury in 1962 involving loss of part of the right ear.  In November 1978, a decrease in hearing was noted.  On the separation examination, he had neurosensory hearing loss, as well as a deformed right auricle.  After his discharge from service, a VA examination was performed in June 1979.  The Veteran reported that he occasionally felt a burning sensation in his ears.  On examination, he had partial loss of the tragus and pinna of the right ear, due to an old accident at the age of 12.  Audiometric findings were reflective of a 20 percent evaluation under the criteria then in effect, and service connection was granted for bilateral sensorineural hearing loss in a July 1979 rating decision.  

Based on a VA examination in September 1980, his rating was reduced to 0 percent, effective in February 1981, in an October 1980 rating decision.  In May 1988, he filed a claim for an increased rating, and a VA examination was performed in November 1988.  Based on those findings, he was granted a 10 percent rating under revised regulations for evaluating hearing loss, effective in December 1987, the effective date of the revised regulations.  

In an August 1991 rating decision, service connection was granted for tinnitus and a 10 percent rating was assigned, which is the highest rating provided under the rating schedule for tinnitus, and the rating for tinnitus, and hence symptoms of tinnitus, are not for consideration in this decision.  

In November 2006, the Veteran filed a claim for an increased rating for bilateral hearing loss, stating that his hearing has gotten worse.  He said that he had been told that his left eardrum was not opening up and had gone from mild to severe.  He was granted a 30 percent rating in a December 2006 rating decision.  He appealed, contending that a hearing test in a soundproof room was different than in a normal environment.  He said he could not longer enjoy television or music, and it upset him when had had to keep asking people to repeat themselves.  He said he could no longer hold a good conversation with anyone.  His ears burned from time to time for 60 seconds or longer, and sometimes he got a very sharp pain, as if he were getting an earache.  

In October 2006, the Veteran was evaluated in a VA audiology clinic, complaining of hearing loss.  He stated that his right ear had been partially torn off after being dragged by a car when he was 12 years old.  He also reported longstanding left ear otalgia and pressure.  Otoscopic examination revealed a microtic appearing right pinna.  On audiological evaluation, pure tone thresholds were:




HERTZ



1000
2000
3000
4000
Average
RIGHT
65
75
70
70
70
LEFT
60
85
80
85
78

The Maryland CNC word list speech recognition score was 92% in the right ear and 80% in the left ear.  It was noted that he was slightly uncooperative during speech recognition testing.  The assessment was mild sloping to a severe sensorineural bilateral hearing loss with the left ear being more severe.  He had a flat tympanogram in the left ear, and he was referred for an ENT consult due to that as well as otalgia/aural pressure of the left ear.  

The Veteran was seen in a VA otolaryngology clinic in December 2006, and although a history of Eustachian tube dysfunction on the left was noted, the Veteran's tympanic membranes were clear on examination.  He was cleared for hearing aids.  Follow-up records show that some difficulties were experienced with properly fitting the Veteran with satisfactory hearing aids, especially in the right ear.  While these problems were ongoing, he reported, in a psychotherapy session, that he felt he should be taught sign language at VA expense.    

By the end of January 2007, the Veteran had a satisfactory hearing aid in the left ear.  He reported good sound quality and comfortable fit.  The audiologist had not been able to provide a right ear hearing aid, due to space limitations in his concha.  She noted that she had only attempted one manufacturer, at the Veteran's request.  A sign language course was not recommended.  He was not deaf, he was not involved in the deaf community, and would have no one to communicate with if he signed.  Moreover, he was able to hear and understand normal conversational speech without the use of amplification.  He was also able to understand the audiologist when she spoke with him on the telephone the previous day. 

The following day, the Veteran reported to a psychotherapist that his hearing was his number one problem.  He had one hearing aid but the shape of his left [sic] ear would not allow another.  He said that the hearing aid had a lot of background noise which made it hard for him to really hear someone.  He wanted to learn sign language.  

However, subsequent records do not show pertinent complaints again until in July 2009, when the Veteran was seen for an evaluation after having lost his hearing aid.  At that time, tympanograms were normal bilaterally.  On audiological evaluation, pure tone thresholds were:




HERTZ



1000
2000
3000
4000
Average
RIGHT
60
65
60
60
61
LEFT
50
75
70
75
68

The Maryland CNC word list speech recognition score was 80% in the right ear and 76% in the left ear.  The audiologist concluded that the Veteran had bilateral mild sloping to severe sensorineural hearing loss.  It was noted that thresholds had improved slightly since the last audiometric evaluation.  Speech recognition scores were good in the right ear and fair in the left ear.  He was recommended to have a hearing aid evaluation for the left ear only, due to a microtic appearing right pinna.  He picked up his hearing aid in September 2009.  


An authorized VA audiology examination was performed in April 2011.  At that time, pure tone thresholds were:




HERTZ



1000
2000
3000
4000
Average
RIGHT
60
65
65
65
63.75
LEFT
55
75
75
75
70

The Maryland CNC word list speech recognition score was 72% in the right ear and 64% in the left ear.  The audiologist concluded that the Veteran had moderately severe sensorineural hearing loss in the right ear, and moderately severe to severe sensorineural hearing loss in the left ear.  Speech recognition performance was poor in the left ear and fair in the right ear.  Tympanogram revealed normal middle ear function bilaterally.  It was noted that hearing was essentially unchanged when compared to the July 2009 examination.  The disability's impact on occupational activities was noted to be hearing difficulty; he was not employed.  As to other activities, the Veteran reported that he was having increased difficulty understanding conversation, and that he could not hear warning sirens until they were very close.  The Veteran complained that his left ear was itchy, and he was referred for an ENT consult.

According to a July 2011 otolaryngology clinic note, the Veteran was referred for evaluation of intermittent itching in his ears.  He denied otalgia.  On examination, both drums and canals were normal.  He had a congenital ear malformation on the right.  The physician stated that the bilateral ear itching was separate and distinct from his service-connected bilateral hearing loss and tinnitus.  Such is sufficient to meet the requirements set out by the Court in Mittleider v. West, 11 Vet. App. 181 (1998), which held that when it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition.  In September 2011, the physician reviewed the claims file, and concluded that the Veteran's bilateral ear itching was not at least as likely as not related to an injury or disease incurred in service or proximately due to, the result of, or aggravated by his service-connected bilateral sensorineural hearing loss.  

The assignment of a disability rating for hearing impairment is "derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered."  Lendenmann v. Principi, 3 Vet.App. 345, 349 (1993).  Specifically, organic impairment of hearing acuity is rated by using audiological test results, obtained by a state-licensed audiologist, and the basic rating method involves using both the results of controlled speech discrimination tests (Maryland CNC) and the average decibel threshold level as measured by pure tone audiometry tests at the frequencies of 1000, 2000, 3000, and 4000 Hertz.  38 C.F.R. § 4.85(a).  Tests are conducted without hearing aids.  Id.  The rating schedule establishes eleven auditory acuity levels ranging from numeric level I through numeric level XI, obtained by applying the findings to Table VI or VIa.  38 C.F.R. §§ 4.85, 4.86.  The numeric designations for both ears are then applied to Table VII to derive the percentage evaluation, under diagnostic code 6100.  

Here, the test in October 2006 results in a numeric designation of II in the right ear and V in the left ear; applied to Table VII, this would result in a 10 percent rating.  38 C.F.R. § 4.85, Code 6100.

However, where circumstances warrant, there is also a method for rating exceptional patterns of hearing impairment, under Table VIa.  See 38 C.F.R. § 4.86.  When applicable based on specified pure tone threshold findings, all four frequencies must have pure tone threshold of 55 decibels or more, or the threshold at 1000 hertz must be 30 decibels or less, while the threshold at 2000 decibels must be 70 decibels or more.  38 C.F.R. § 4.86.  In this case, the October 2006 pure tone threshold findings were all 55 decibels or more; thus, the Veteran has an exceptional pattern of hearing impairment, and Table VIa may be applied, if a higher rating would result.  In this table, the numeric designations are obtained using pure tone thresholds only; that is, the speech discrimination scores are not used.  The October 2006 pure tone threshold findings result in a numeric designation of VI in the right ear and VII in the left ear, using Table VIa.  Applied Table VII, a 30 percent rating is warranted.  Thus, the RO correctly applied Table VIa to achieve the highest possible rating, based on the October 2006 criteria.  

The April 2011 findings correspond to numeric designation VI under Table VI or VIa for the right ear.  For the left ear, the numeric designation under Table VI is VII, and under Table VIa, it is VI.  Applied to Table VII, either of these warrants a 30 percent rating.  

For the July 2009 audiology results, the findings correspond to numeric designation IV under Table VI or VIa for the right ear.  For the left ear, because the pure tone threshold at 1000 hertz was 50 decibels, only Table VI applies, and the applicable numeric designation is IV.  These findings would warrant a 10 percent rating.  If the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending, staged ratings may be assigned.  Hart v. Mansfield, 21 Vet. App. 505 (2007); 38 C.F.R. § 4.2.  However, because the tests both before and after this 2009 test warranted a 30 percent rating, and because the examiner in April 2011 indicated that the Veteran's hearing was essentially unchanged from July 2009, the Board finds that a staged rating of 10 percent is not appropriate.  Instead, the 30 percent rating should be applied throughout the appeal period.  

In addition, with respect to the audiology examination, the audiologist must describe the functional effects caused by a hearing disability in the final report.  Martinak v. Nicholson, 21 Vet. App. 447, 455-456 (2007).  The examiner in April 2011 noted that the impact on occupational activities would be "hearing difficulty."  He was unemployed at the time, and the Board notes that in October 2007, the Veteran reported that he had previously worked as a machine operator for 14 years, and then left the job.  As to other activities, the Veteran reported that he was having increased difficulty understanding conversation, and that he could not hear warning sirens until they were very close.  In December 2006, the Veteran said he could not longer enjoy television or music, and it upset him when had had to keep asking people to repeat themselves.  He said he could no longer hold a good conversation with anyone.  However, during the same time frame, a VA audiologist said, in January 2007, that the Veteran was able to hear and understand normal conversational speech without the use of hearing aids, and that he had been able to understand the audiologist when she spoke with him on the telephone.  The Board finds that the weight of the evidence establishes that functional impairment warranting an evaluation in excess of 30 percent has not been shown.  

In December 2006, the Veteran contended that a hearing test in a soundproof room was different than in a normal environment.  However, VA's method of evaluating hearing loss by controlled speech discrimination and pure tone audiometry testing without the use of hearing aids has been upheld by the Court.  See, e.g., Lendenmann, supra; Martinak, supra.  

In considering whether referral for extraschedular consideration is appropriate, the Court has set forth a three-step analysis which provides additional guidance in determining whether referral for extraschedular consideration is appropriate.  Thun v. Peake, 22 Vet. App. 111 (2008).  The initial step is a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Id.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  

The rating schedule provides for various compensable ratings for different levels of hearing impairment, but the Veteran's hearing loss does not meet the criteria.  Hearing loss is evaluated based on both pure tone threshold loss and speech discrimination.  Moreover, the schedule provides for ratings for exceptional patterns of hearing impairment deemed not to be adequately covered by the rating schedule; this was how the Veteran initially achieved entitlement to a 30 percent rating.  Thus, the Board finds that the schedular criteria are adequate and that therefore it is not necessary to proceed to the second step-a discussion of whether the exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms," such as "marked interference with employment" and "frequent periods of hospitalization."  For these reasons, referral for extraschedular consideration is not appropriate in this case.  


Given the foregoing, a question as to which of two evaluations to apply has not been presented, and the disability picture does not more nearly approximate the criteria required for a rating in excess of 30 percent.  38 C.F.R. § 4.7 (2012).  In reaching this determination, the Board is mindful that all reasonable doubt is to be resolved in the Veteran's favor.  The preponderance of the evidence, however, is against the claim, and the claim must be denied.  38 U.S.C. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  


ORDER

An evaluation in excess of 30 percent for bilateral hearing loss is denied.



____________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs