Citation Nr: 1309841 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 08-00 927 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to a compensable disability rating for bilateral conductive deafness. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from September 1957 to September 1960. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a September 2006 decision of the RO that, in pertinent part, denied a compensable disability rating for service-connected hearing loss. The Veteran timely appealed. In October 2008, the Veteran cancelled a hearing that was scheduled before RO personnel. In May 2009, the Veteran testified during a hearing before the undersigned at the RO. Following the hearing, the Veteran submitted additional evidence and waived initial consideration of the evidence by the RO. In August 2009, October 2010, and January 2012, the Board remanded the matter for additional development. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court has held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board notes that the Veteran is retired and no longer working. While the Veteran has indicated that he had some difficulty with his prior work activities due to his service-connected disabilities, he has not alleged that his service-connected disabilities prevented him from obtaining or maintaining substantially gainful employment. The matter is not raised by the record, and the Board finds it unnecessary to remand the matter for further action. Lastly, in addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his Virtual VA file. The issue of an increased rating for service-connected otitis media and externa, bilateral, has been raised by the record (September 2011 correspondence), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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). FINDING OF FACT Audiometric testing in August 2006, September 2007, November 2008, and December 2009 has revealed, at worst, Level I hearing acuity in the right ear and Level IV hearing acuity in the left ear. CONCLUSION OF LAW The criteria for a compensable evaluation for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.385, 4.1, 4.7, 4.85, Tables VI, VIa, VII; 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3). A decision by the United States Court of Appeals for the Federal Circuit has addressed the amount of notice required for increased rating claims, essentially stating that general notice is adequate and notice need not be tailored to each specific Veteran's case. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Through June 2008 and October 2010 letters, the RO and AMC notified the Veteran of elements of an increased rating claim and the evidence needed to establish each element. These documents served to provide notice of the information and evidence needed to substantiate the claims. In each letter, the RO and AMC specifically notified the Veteran of the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Defects as to the timeliness of the statutory and regulatory notice are rendered moot because the Veteran's claim on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). There is no indication that any additional action is needed to comply with the duty to assist the Veteran. The RO or AMC has obtained copies of the service treatment records and outpatient treatment records, and has arranged for VA examinations in connection with the claim on appeal; and there are reports of examinations, which are adequate for rating purposes. The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. There was also substantial compliance with the Board's remand directives. The August 2009 and October 2010 remands requested that VA records dating from December 2008 and audiogram results from May 2007 be obtained. These records were obtained and associated with the claims folder and/or Virtual VA. The January 2012 remand requested that the Veteran provide authorization to obtain additional records from Dr. Cunningham including audiogram results. The RO contacted the Veteran by way of a February 2012 letter to request the information, however, the Veteran did not respond. The RO was also asked to obtain scanned VA records, which were thought to be audiograms, dated May 5, 2009 and July 30, 2009. The scanned records were obtained, however, they related to the Veteran's hearing aids. The Veteran was also to be scheduled for another examination, which was accomplished by the RO. In light of the above, there has been substantial compliance with the remands. The record reflects that the Veteran declined to cooperate with a VA examination scheduled in February 2012, and that neither the Veteran nor his representative have since indicated a willingness to report for another examination. That examination had been directed by the Board's January 2012 remand, in part, to determine the current severity of the Veteran's hearing loss disability and its effects on daily activities. Given the Veteran's failure to complete the examination, the Board finds that the Board's instructions were complied with to the extent possible under the circumstances. Here, the Veteran is pursuing a claim for increase. Because he had reported and cooperated with prior examinations during the appellate period, the Board has attempted to evaluate his claim to the extent possible, based upon the probative evidence of record. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claim. 38 U.S.C.A. § 5103A(a)(2). II. Analysis Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2012). The Veteran's entire history is reviewed when making disability evaluations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of hearing loss. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Service connection has been established for conductive deafness, effective September 1960. The RO currently assigned a 0 percent (noncompensable) disability rating under 38 C.F.R. § 4.86, Diagnostic Code 6100, pertaining to hearing impairment. Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings reported at audiometric examinations. Evaluations of hearing impairment range from noncompensable to 100 percent 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 1,000, 2,000, 3,000, and 4,000 cycles per second. To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2012). Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. The regulations include special provisions for evaluating exceptional patterns of hearing impairment: (a) 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. (b) 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 in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. Private treatment records, dated in November 2005, show that the Veteran had a longstanding left tympanic membrane perforation, and significant hearing loss in that ear and wore a hearing aid. In January 2006, an otologist found mixed hearing loss in the left ear with a low frequency conductive component and a high frequency sensorineural component. In the right ear, there was a very mild conductive hearing loss in the low frequencies. The otologist did not report pure tone threshold results for each frequency, and did not indicate whether the Maryland CNC speech discrimination test was used. 38 C.F.R. § 4.85(a). This evidence is thus inadequate for rating purposes. During an August 2006 VA examination, the Veteran complained of decreased hearing that was worse in the left ear. He also complained of difficulty understanding conversation, especially soft voices. He reported that he had worn a hearing aid in his left ear for about three years. Audiology testing found normal to mild sensorineural hearing loss in the right ear, and moderate to moderately severe mixed hearing loss in the left ear. Testing results were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 35 25 40 LEFT 65 45 45 65 Speech recognition scores were 92 percent in the right ear and 76 percent in the left ear. Pure tone threshold averages were 31.25 for the right ear and 55 for the left ear. These findings correspond to Level I hearing in the right ear and Level IV hearing in the left ear, which in turn corresponds to a noncompensable disability rating. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 is not shown. VA treatment records include a May 2007 audiology clinic note. At the time the Veteran denied any subjective decrease in hearing sensitivity, and underwent a monitoring audiogram. Testing for the left ear revealed moderately severe conductive hearing loss at 1000 hertz, mild sensorineural hearing loss at 2000 hertz, mild conductive hearing loss at 3000 hertz, and severe mixed hearing loss at 4000 hertz. Testing for the right ear revealed normal hearing sensitivity at 1000 hertz, mild sensorineural hearing loss at 2000 hertz, normal hearing sensitivity at 3000 hertz, and mild sensorineural hearing loss at 4000 hertz. Speech recognition testing was recorded at 100 percent for each ear. The audiological results were as follows: 1000 2000 3000 4000 RIGHT 25 35 25 40 LEFT 65 45 40 70 Pure tone threshold averages were 31.25 in the right ear and 55 in the left ear. Speech discrimination was 100 percent in each ear. The Board will resolve any doubt as to whether the test results meet the requirements of 38 C.F.R. § 4.85(a) in the Veteran's favor. These findings correspond to Level I hearing in each ear, which in turn corresponds to a noncompensable disability rating. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 is not shown. Speech audiometry in September 2007 revealed speech recognition ability of 100 percent in the right ear, and 96 percent in the left ear. On audiometric testing, pure tone thresholds, in decibels, were reported as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 30 25 40 LEFT 70 70 45 35 Pure tone threshold averages in September 2007 were 31.25 for the right ear and 55 for the left ear. These findings correspond to Level I hearing in each ear, which in turn corresponds to a noncompensable disability rating. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 is not shown. Speech audiometry in November 2008 revealed speech recognition ability of 92 percent in the right ear, and 88 percent in the left ear. At the time the Veteran reported increased problems with conversations. On audiometric testing, pure tone thresholds, in decibels, were reported as follows: HERTZ 1000 2000 3000 4000 RIGHT 35 35 30 40 LEFT 65 40 40 60 Pure tone threshold averages in November 2008 were 35 for the right ear and 51.25 for the left ear. These findings correspond to Level I hearing in the right ear and Level II in the left ear, which in turn corresponds to a noncompensable disability rating. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 is not shown. In March 2009, a private otologist stated that the Veteran has a subtotal perforation of the left tympanic membrane and has a significant hearing loss in that ear; and that the Veteran has recently been found to have a hearing loss in the right ear as well. The otologist indicated that, due to the bilateral nature of his hearing loss, the Veteran will have significant difficulty with his hearing in social situations; and recommended that the Veteran obtain a hearing aid for his right ear. In May 2009, the Veteran testified that his hearing loss had worsened and that he required hearing aids in both ears. He also testified that he had vertigo spells and dizziness from time to time. The Veteran testified that he was now retired, and that he used to work as a power lineman and had difficulty hearing what people were saying when he was 90 feet up in the air. The Board notes that the Veteran's service-connected otitis media and externa, service-connected vestibular dysfunction, and service-connected tinnitus have been evaluated separately and are not for consideration in evaluating the Veteran's bilateral hearing loss. 38 C.F.R. § 4.14. VA treatment records show that bilateral hearing aids were ordered for the Veteran in July 2009. The hearing aids were seated and programmed to the Veteran's satisfaction in October 2009, and a 30-minute orientation was conducted by the audiologist. During a December 2009 VA examination, the Veteran reported a history of left ear surgeries and permanent tympanic membrane perforation, and that he wore binaural hearing aids. He reported having hearing difficulty in his former employment as an electrical lineman, and that he could not hear his co-workers from the top of a pole. Speech audiometry revealed speech recognition ability of 92 percent in each ear. On audiometric testing, pure tone thresholds, in decibels, were reported as follows: HERTZ 1000 2000 3000 4000 RIGHT 40 35 30 40 LEFT 70 50 50 55 Pure tone threshold averages were 36.25 for the right ear and 56.25 for the left ear. These findings correspond to Level I hearing in both ears, which in turn corresponds to a noncompensable disability rating. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 is not shown. Recent VA treatment records primarily pertain to evaluations for hearing aids and for vestibular dysfunction. Records, dated in March 2012, show that the Veteran reportedly lost his right hearing aid; and his left hearing aid was undergoing repair since February 2012. Following the Board's January 2012 remand, the Veteran presented for a VA examination in February 2012 for purposes of evaluating the current severity of his bilateral hearing loss and its effects on daily activities. The Veteran reported that he currently had difficulty understanding speech. The Veteran also indicated that he did not think VA's testing procedure for hearing loss was valid because the testing was performed in a sound booth and not in a "real world" environment. He then discontinued the audimetric testing, and departed. The examiner was unable to determine whether there was any change in the severity of the Veteran's hearing loss without the completed examination. Because of the lack of cooperation by the Veteran, this evidence is inadequate for rating purposes. The Board has considered the Veteran's statements as to the difficulties he experiences socially as a result of his bilateral hearing loss and finds his report of difficulty understanding conversation credible. However, the Board observes that VA examiners also considered the Veteran's functional difficulty, and that he required hearing aids in both ears. It is noted that the Veteran asserts that testing in a soundproof booth is not representative of difficulty hearing in real-world situations. In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Veterans Court noted that VA had revised its hearing examination worksheets to include the effect of the veteran's hearing loss disability on occupational functioning and daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2007). The Court also noted, however, that even if an audiologist's description of the functional effects of the veteran's hearing disability was somehow defective, the veteran bears the burden of demonstrating any prejudice caused b a deficiency in the examination. The Veteran reported during VA examinations that he has difficulty understanding conversations. Thus, information concerning how the veteran's hearing loss affects his daily functioning was obtained. Regarding his argument, VA's policy of conducting audiometry testing in a sound-controlled room was upheld in Martinak. VA's audiological examinations are designed for the purpose of obtaining information necessary for the full and accurate application of the hearing loss rating schedule, which is based exclusively on the results provided from two objective tests, a pure tone audiometry test and a speech discrimination test. See 38 C.F.R. § 4.85. The Veteran has not offered any evidence demonstrating that the testing method used produces inaccurate, misleading or clinically unacceptable results. It must be emphasized that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. While the Veteran has testified that his hearing has deteriorated, none of the audiometric examinations reflects a decrease in his level of hearing acuity to warrant a compensable rating. These test results are highly probative evidence against his claim as testing was specifically accomplished to determine whether an increase in hearing disability is shown. Accordingly, the Board finds that the preponderance of the evidence is against finding that his bilateral hearing loss has increased in severity to warrant a compensable rating, or that available findings do not accurately reflect his hearing ability at any time. Hence, the Board concludes that the objective clinical findings outweigh his lay assertions that a compensable evaluation is warranted. Finally, an extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The Board finds that the schedular evaluation assigned for the Veteran's service-connected bilateral hearing loss is adequate in this case. Specifically, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected disability. The Veteran reports that he has difficulty hearing and understanding conversations, especially soft voices. Such difficulty hearing is contemplated by the schedular criteria for hearing loss. Therefore, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For the foregoing reasons, a compensable disability rating for the Veteran's bilateral hearing loss is not warranted. ORDER A compensable evaluation for bilateral hearing loss is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs