Citation Nr: 1306965	
Decision Date: 02/28/13    Archive Date: 03/01/13

DOCKET NO.  10-13 545	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to an increased disability rating in excess of 40 percent for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. M. Celli, Associate Counsel

INTRODUCTION

The Veteran served on active duty from October 1948 to July 1970.

This matter comes before the Board of Veterans' Appeals (Board) from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina that denied a disability rating in excess of 40 percent for bilateral hearing loss.  

In May 2012, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge, and a transcript of the proceeding is of record.  

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. In December 2008, the Veteran's bilateral hearing loss was clinically shown to be manifested by no worse than Level V hearing in the right ear and Level X hearing in the left ear.

2. On VA examination in January 2009, the Veteran's bilateral hearing loss was clinically shown to be manifested by no worse than Level V hearing in the right ear and Level IX hearing in the left ear.

3. On VA examination in January 2010, the Veteran's bilateral hearing loss was clinically shown to be manifested by no worse than Level VI hearing in the right ear and Level IX hearing in the left ear.

CONCLUSION OF LAW

The criteria for an increased rating in excess of 40 percent for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.85, Diagnostic Code 6100 (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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 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 decision by the agency of original jurisdiction on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim.  As previously defined by the courts, those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Upon receipt of an application for "service connection," therefore, VA is required 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 the elements of the claim as reasonably contemplated by the application.  This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded.  Accordingly, in VA correspondence dated in June 2007 and December 2008, the Veteran was informed of what evidence was required to substantiate the claim, of his and VA's respective duties for obtaining evidence, and of the criteria necessary for assignment of a disability rating and effective date.  

All the VCAA requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims.  Once this has been accomplished, all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996).  The Board finds the VCAA notice requirements have been met in this case.

Duty to Assist

With regard to the duty to assist, the claims file contains the Veteran's service treatment records, VA examination reports, and lay testimony provided by the Veteran.  In July 2012, the Board remanded the Veteran's claim to obtain additional VA treatment records from January 2010 to the present, to include April 2012.  Review of the evidence of record reflects VA treatment records dated from January 2010 to April 2012.  As such, the Board finds the RO substantially complied with the remand directives.  See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008).  The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record.  

The evidence of record includes findings from a December 2008 VA audiological examination, and the Veteran underwent VA examination in connection with his claim in January 2009 and January 2010.  To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA examinations are adequate with respect to the issue now on appeal, as they were predicated on auricle examinations, external ear examinations, speech recognition testing, and pure tone audiometric testing.  Also, the January 2009 and January 2010 examinations provide findings relevant to the Veteran's functional impairment in daily life.  Martinak v. Nicholson, 21 Vet. App. 447 (2007).  Hence, the examinations provide findings relevant to the criteria for rating the disability at issue.  Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008).  Thus, the Board finds that VA's duty to assist with respect to obtaining an examination or opinion has been met.  38 C.F.R. § 3.159(c)(4).  

As all relevant facts have been properly and sufficiently developed in this appeal, no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim.  Essentially, all available evidence that could substantiate the claim has been obtained.

Legal Criteria

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012).  When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2012).  

Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition.  It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history.  38 C.F.R. § 4.1 (2012).  Nevertheless, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  

Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  


Rating Hearing Loss

In evaluating service-connected hearing loss, 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).  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, 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.  The horizontal lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  38 C.F.R. § 4.85.  The vertical columns in Table VI represent nine categories of decibel loss based on the pure tone audiometric test.  Id.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate for the pure tone decibel loss.

The percentage evaluation is found from Table VII by intersecting the horizontal row appropriate for the numeric designation for the ear having the better hearing acuity and the appropriate vertical column to the numeric designation level for the ear having the poorer hearing acuity.  See 38 C.F.R. § 4.85(e).  

The provisions of 38 C.F.R. § 4.86(a) (2012) provide that when the pure tone threshold 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 decibels or less at 1000 Hertz and 70 decibels 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.

Analysis

The Board has reviewed all of the evidence in the Veteran's claims file.  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 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 the claim.

The Veteran's service-connected hearing loss disability has been assigned a 40 percent disability rating pursuant to Diagnostic Code 6100.  The Veteran avers that he is entitled to a higher rating.

The competent clinical evidence of record consists of audiological examinations performed in December 2008, January 2009, and January 2010.  The December 2008 report revealed that the relevant pure tone thresholds, in decibels, were as follows:

HERTZ

1000
2000
3000
4000
RIGHT
65
65
65
75
LEFT
80
75
110
110

The VA examiner found the audiological examination results did not show a significant change in pure tone thresholds since the Veteran's last examination in June 2007, which demonstrated moderate to severe sensorineural hearing loss in the right ear and severe to profound sensorineural hearing loss in the left ear.  However, word recognition scores were somewhat lower than on previous examination.  
On the basis of the numbers shown above, the Veteran's pure tone threshold average for the right ear was recorded as 67.5 decibels.  His pure tone threshold average for the left ear was recorded as 93.75 decibels.  His speech recognition ability was 80 percent for the right ear and 36 percent for the left ear.
 
Applying 38 C.F.R. § 4.85, Table VI to the December 2008 audiometric examination findings, the Veteran's right ear hearing loss is a Level IV impairment based on a pure tone threshold average of 67.5 decibels and an 80 percent speech recognition score.  The Veteran's left ear hearing loss is a Level X impairment based on a pure tone threshold average of 93.75 decibels and a 36 percent speech recognition score.  As such, the Veteran's left ear is considered the poorer ear for rating purposes.  Applying the criteria from Table VI to Table VII, a 30 percent rating is derived.  

As described above, the rating criteria also provides for rating exceptional patterns of hearing impairment under the provisions of 38 C.F.R. § 4.86.  As the Veteran's December 2008 test results demonstrate a pure tone threshold of 55 decibels or more in all four frequencies in both ears, evaluation under 38 C.F.R. § 4.86 is warranted.  Applying these findings to 38 C.F.R. § 4.85, Table VIA of the Rating Schedule reveals numeric designations of Level V for the Veteran's right ear and Level IX for the Veteran's left ear.  Per 38 C.F.R. § 4.86(a), the Board will apply the Roman numeral designation for hearing impairment that results in the higher numeral for each ear separately.  When comparing these results under both Table VI and Table VIA, at worse the Veteran's right ear is considered a Level V impairment and his left ear a Level X impairment, which results in a 40 percent rating for bilateral hearing loss.  

Additionally, although the evidence of record demonstrated pure tone thresholds of 70 decibels or more at 2000 Hertz in the left ear, the evidence did not show pure tone thresholds of 30 decibels or less at 1000 Hertz in the left ear.  Thus, the Veteran is not entitled to additional consideration under C.F.R. § 4.86(b) for exceptional patterns of hearing impairment for his service-connected bilateral hearing loss.

The January 2009 VA examination report revealed that the relevant pure tone thresholds, in decibels, were as follows:

HERTZ

1000
2000
3000
4000
RIGHT
60
60
60
70
LEFT
75
85
90
105+

The VA examiner diagnosed moderate to severe sensorineural hearing loss in the right ear and severe to profound sensorineural hearing loss in the left ear.  The Veteran reported that he had difficulty understanding conversations in a group of people and that he had to turn up the television and cell phone.  No significant effect on his occupation or usual daily activities was noted.

On the basis of the numbers shown above, the Veteran's pure tone threshold average for the right ear was recorded as 62.5 decibels.  His pure tone threshold average for the left ear was recorded as 88.75 decibels.  His speech recognition ability was 72 percent for the right ear and 48 percent for the left ear using the Maryland CNC speech recognition test.  

Applying 38 C.F.R. § 4.85, Table VI to the January 2009 audiometric examination findings, the Veteran's right ear hearing loss is a Level V impairment based on a pure tone threshold average of 62.5 decibels and a 72 percent speech recognition score.  The Veteran's left ear hearing loss is a Level IX impairment based on a pure tone threshold average of 88.75 decibels and a 48 percent speech recognition score.  As such, the Veteran's left ear is considered the poorer ear for rating purposes.  Applying the criteria from Table VI to Table VII, a 40 percent disability rating is derived. 

As the Veteran's January 2009 test results demonstrate a pure tone threshold of 55 decibels or more in all four frequencies in both ears, evaluation under 38 C.F.R. § 4.86 is warranted.  Applying these findings to 38 C.F.R. § 4.85, Table VIA of the Rating Schedule reveals numeric designations of Level V for the Veteran's right ear and Level VIII for the Veteran's left ear.  Per 38 C.F.R. § 4.86(a), the Board will apply the Roman numeral designation for hearing impairment that results in the higher numeral for each ear separately.  When comparing the results under both Table VI and Table VIA, at worse the Veteran's right ear is a Level V impairment and his left ear is a Level IX impairment, which results in a 40 percent rating for bilateral hearing loss.  Additionally, although the evidence of record demonstrated pure tone thresholds of 70 decibels or more at 2000 Hertz in the left ear, the evidence did not show pure tone thresholds of 30 decibels or less at 1000 Hertz in the left ear.  Thus, the Veteran is not entitled to additional consideration under C.F.R. § 4.86(b) for exceptional patterns of hearing impairment for his service-connected bilateral hearing loss.
 
In January 2010, the relevant pure tone thresholds, in decibels, were as follows:

HERTZ

1000
2000
3000
4000
RIGHT
65
65
65
75
LEFT
75
90
90
105+

The VA examiner diagnosed moderately severe to severe sensorineural hearing loss in the right ear and moderately severe to profound sensorineural hearing loss in the left ear.  The Veteran reported difficulty understanding conversations in a group, difficulty understanding the television, and having to ask others to repeat themselves.  

On the basis of the numbers shown above, the Veteran's pure tone threshold average for the right ear was 67.5 decibels.  His pure tone threshold average for the left ear was 90 decibels.  His speech recognition ability was 72 percent for the right ear and 44 percent for the left ear using the Maryland CNC speech recognition test.  

Applying 38 C.F.R. § 4.85, Table VI to the January 2010 audiometric examination findings, the Veteran's right ear hearing loss is a Level VI impairment based on a pure tone threshold average of 67.5 decibels and a 72 percent speech recognition score.  The Veteran's left ear hearing loss is a Level IX impairment based on a pure tone threshold average of 90 decibels and a 44 percent speech recognition score.  As such, the Veteran's left ear is considered the poorer ear for rating purposes.  Applying the criteria from Table VI to Table VII, a 40 percent disability rating is derived.  

As the Veteran's January 2010 examination results demonstrate a pure tone threshold of 55 decibels or more in all four frequencies in both ears, evaluation under 38 C.F.R. § 4.86 is warranted.  Applying these findings to 38 C.F.R. § 4.85, Table VIA of the Rating Schedule reveals numeric designations of Level V for the Veteran's right ear and Level VIII for the Veteran's left ear.  

Per 38 C.F.R. § 4.86(a), the Board will apply the Roman numeral designation for hearing impairment that results in the higher numeral for each ear separately.  When comparing the results under both Table VI and Table VIA, at worse the Veteran's right ear is a Level VI impairment and his left ear is a Level IX impairment, which results in a 40 percent rating for bilateral hearing loss.  Additionally, although the evidence of record demonstrated pure tone thresholds of 70 decibels or more at 2000 Hertz in the left ear, the evidence did not show pure tone thresholds of 30 decibels or less at 1000 Hertz in the left ear.  Thus, the Veteran is not entitled to additional consideration under C.F.R. § 4.86(b) for exceptional patterns of hearing impairment for his service-connected bilateral hearing loss.

An April 2012 VA treatment record indicates the Veteran underwent additional audiological testing.  Word recognition scores were recorded as 76 percent in the right ear and 44 percent in the left ear, which shows improvement in the Veteran's right ear and no change or worsening in the left ear.  The VA physician diagnosed moderately severe to severe sensorineural hearing loss in the right ear and moderate to profound sensorineural hearing loss in the left ear.  Although the record does not include the complete results for the pure tone thresholds, the VA physician noted that there was no significant change from the previous audiological examinations, and the Veteran did not report any changes in his hearing.  His hearing was noted as stable, and there is no indication that his hearing aids were altered.  As it appears all available VA treatment records were obtained and associated with the record on remand, to include those dated in April 2012, the Board finds a remand is not warranted.  Sabonis v. Brown, 6 Vet. App. 426, 430   (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). 

Additionally, as the record contains no evidence showing the Veteran is entitled to a higher rating at any point during the instant appeal, staged ratings are not appropriate.  See Hart, 21 Vet. App. 505.  

The Board recognizes the Veteran's assertions regarding the impact of his bilateral hearing loss on his daily life.  In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that, relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in the report.  On VA examination in January 2009, the Veteran reported that he had difficulty understanding conversations in a group of people and that he had to turn up the television and his cell phone.  The VA examiner found the Veteran's bilateral hearing loss had no significant effect on his occupation or usual daily activities.  In January 2010, the Veteran reported difficulty understanding conversations in a group, difficulty understanding the television, and having to ask others to repeat themselves.  It was noted that the effects of the Veteran's bilateral hearing loss on his occupation were significant; however, no further information was provided, and the record does not demonstrate that the Veteran has otherwise asserted that his bilateral hearing loss significantly affects his occupation.  At the May 2012 Board hearing, the Veteran testified that he had difficulty listening to the television and hearing the sirens from emergency vehicles while he was driving.  The Veteran asserted that he no longer drove long distances because of these limitations, although he did drive short distances daily.  He reported that he had trouble hearing in large crowds of people and that he no longer went to church because he could not understand the preacher.  Finally, the Veteran testified that he had to purchase a different cell phone in order to hear telephone calls and that he was able to understand some phone conversations on his land line telephone.  

The Veteran is competent to report the effects of his bilateral hearing loss on his daily functioning; however, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment.  Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.85, Diagnostic Code 6100 with respect to determining the severity of his service-connected bilateral hearing loss.  See Moray v. Brown, 2 Vet. App. 211, 214 (1993); 38 C.F.R. § 3.159(a)(1) and (2) (2012).

In conclusion, the 40 percent disability rating currently assigned for the Veteran's bilateral hearing loss accurately reflects his disability picture, and a higher rating is not appropriate.  As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).

Extraschedular consideration 

Based on the foregoing, the Board finds that the evidence of record is sufficient to rate the disability on appeal and to consider whether referral for an extraschedular rating is warranted under 38 C.F.R. § 3.321(b). 

Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. 

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected bilateral hearing loss is inadequate.  The rating criteria reasonably describe the Veteran's disability level and symptomatology.  The rating criteria contemplate a level of impaired hearing as shown by objective testing, and the evidence does not show that the Veteran experiences any symptomatology not contemplated by the Rating Schedule.  Referral for extraschedular consideration is therefore not warranted, and further inquiry into extraschedular consideration is moot.  See VAOPGCPREC 6-96; see also Thun, 22 Vet. App. 111 (2008). 

Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki,  22 Vet. App. 447 (2009).  In Rice, the Court held that a claim for a total rating based on individual unemployability (TDIU) due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating.  In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disability at issue renders him totally unemployable.  Accordingly, the Board concludes that a claim for a TDIU has not been raised.


ORDER

Entitlement to an increased disability rating in excess of 40 percent for bilateral hearing loss is denied.



____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs