Citation Nr: 1310078	
Decision Date: 03/25/13    Archive Date: 04/02/13

DOCKET NO.  11-31 843	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to an increased rating for bilateral hearing loss, currently rated as 40 percent disabling.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

David S. Nelson, Counsel






INTRODUCTION

The Veteran had active service from February 1951 to February 1953.

This matter comes before the Board of Veterans' Appeals (BVA or Board) from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  This case was previously before the Board in September 2012 and was remanded for additional development.

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).

A claim for increased evaluation includes a claim for a finding of total disability based on individual unemployability (TDIU) where there are allegations of worsening disability and related unemployability.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  The Veteran has not alleged unemployability due to hearing loss, and a TDIU claim is accordingly not inferred.


FINDINGS OF FACT

1.  From January 29, 2010, through August 3, 2011, the Veteran's bilateral hearing loss was manifested by level VIII hearing acuity in the right ear and level VII hearing acuity in the left ear.

2.  From August 4, 2011, through January 22, 2012, the Veteran's bilateral hearing loss was manifested by level XI hearing acuity in the right ear and level X hearing acuity in the left ear.

3.  From January 23, 2012, the Veteran's bilateral hearing loss manifests by no worse than level VI hearing acuity in the right ear and level VI hearing acuity in the left ear.


CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 40 percent for bilateral sensorineural hearing loss from January 29, 2010, through August 3, 2011, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012).

2.  The criteria for a rating of 90 percent for bilateral sensorineural hearing loss from August 4, 2011, through January 22, 2012, have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012).

3.  The criteria for a rating in excess of 40 percent for bilateral sensorineural hearing loss from January 23, 2012, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

                                                      VCAA

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  The VCAA applies in the instant case.

Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her 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.  38 C.F.R. § 3.159(b)(1).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

By correspondence dated in February 2010 and October 2012, the Veteran was informed of the evidence and information necessary to substantiate the claim, the information required to enable VA to obtain evidence in support of the claim, the assistance that VA would provide to obtain evidence and information in support of the claims, and the evidence that should be submitted if there was no desire for VA to obtain such evidence.  38 U.S.C. § 5103(a).  The Veteran has been informed of the need for evidence demonstrating an increase in the severity of his disability and the effect that his service-connected disability has on his employment.  Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010).  In the February 2010 letter the Veteran received notice regarding the assignment of a disability rating and/or effective date in the event of an award of VA benefits.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice was completed prior to the initial AOJ adjudication of the claims.  Pelegrini.  Importantly, the Board notes that the Veteran is represented in this appeal.  Overton v. Nicholson, 20 Vet. App. 427, 438 (2006).  The Veteran has submitted argument in support of the appeal.  Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of the increased rating claim such that the essential fairness of the adjudication is not affected.

Duty to Assist

The Veteran's service treatment records are associated with the claims file, as are VA and private medical records.  The Veteran has undergone adequate VA examinations that have addressed the medical matters presented on the merits by this appeal.  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 examinations obtained in this case are adequate, as they considered the pertinent evidence of record, and included an examination of the Veteran and elicited his subjective complaints.  The examinations described the Veteran's hearing loss disability in sufficient detail so that the Board is able to fully evaluate the claimed disability.  Further, the Board has considered the holding in Martinak v. Nicholson, 21 Vet. App. 447 (2007).  A review of the VA audiological examinations reflect that the examiners provided an adequate description of the functional effects of the Veteran's hearing loss.  The Board further notes that while it requested that the most recent VA examiner comment as to the private examination and provide an explanation for why the results of the examination were significantly different that the other results of record, no such explanation was provided.  In view of the absence of any comment, the Board finds that it must accept those results at their face value and that another remand for the sole purpose of obtaining the previously requested comment would not be fair to the Veteran.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations in this appeal has been met.

The Board finds that there has been substantial compliance with its September 2012 remand instructions.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).  The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding.  VA's duties to notify and assist are met, and the Board will address the merits of the claim.

Analysis

Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Separate diagnostic codes identify the various disabilities.  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.  Thus, the Board must consider whether the Veteran's disability on appeal is entitled to staged ratings for any time during the appeal period.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3.

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the applicable rating period on appeal.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the 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 of record shows, or fails to show, as to the claim.

The severity of a hearing loss disability is determined by applying the criteria set forth at 38 C.F.R. § 4.85.  Under these criteria, evaluations of bilateral hearing loss 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 defective hearing, the rating schedule establishes eleven auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness.  38 C.F.R. § 4.85.  To evaluate an individual's level of disability, Table VI is used to assign a Roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the pure tone threshold average.  38 C.F.R. § 4.85(b).  Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment for each ear.  38 C.F.R. § 4.85(e).

The rating criteria provide for alternative ratings when an exceptional pattern of hearing is met.  If the puretone threshold at each of the specified frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, an evaluation can be based either on Table VI or Table VIa, whichever results in a higher evaluation.  38 C.F.R. § 4.86(a).  When the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa, whichever results in the higher numeral, and that numeral will then be elevated to the next higher Roman numeral.  38 C.F.R. § 4.86(b).

The Veteran's hearing loss disability is rated as 40 percent disabling, effective May 2009.  The Veteran's claim for an increased rating for his service-connected hearing loss disability was received on January 29, 2010.

The Veteran has been diagnosed with bilateral sensorineural hearing loss.  The Veteran has complained of difficulty in hearing background noise.  

In February 2010 the Veteran underwent a VA audiological examination.  Pure tone thresholds, in decibels, were, in pertinent part, as follows:



HERTZ



1000
2000
3000
4000
RIGHT
55
65
95
100
LEFT
45
65
80
90

The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 79 decibels in the right ear and 70 decibels in the left ear.  Speech recognition ability, using the Maryland CNC test, was 56 percent in the right ear and 62 percent in the left ear.  The audiological findings correspond to a level VIII hearing in the right ear and level VII hearing in the left ear.  38 C.F.R. § 4.85, Table VI.  Under Table VII, a designation of level VIII hearing in the right ear and level VII hearing in the left ear yields a 40 percent evaluation.  38 C.F.R. § 4.85, Diagnostic Code 6100.

Consideration has also been given to 38 C.F.R. § 4.86 for exceptional patterns of hearing impairment.  The evidence from the February 2010 VA audiological examination does reflect that the Veteran's right ear manifests pure tone thresholds of 55 decibels or more at each of the four specified frequencies (1000, 2000, 3000 and 4000 hertz).  38 C.F.R. § 4.86(a).  When applying the results from the February 2010 VA audiological examination to Table VIA, a level VII hearing in the right ear is obtained, less than the level VIII obtained under 38 C.F.R. § 4.85.  As such, a higher rating under 38 C.F.R. § 4.86(a) is not warranted.  As the evidence does not reflect that either ear manifests a pure tone threshold at 1000 hertz of 30 decibels or less and 70 decibels or more at 2000 Hertz, the Veteran's hearing does not meet the pattern of exceptional hearing impairment under 38 C.F.R. § 4.86(b).

On August 4, 2011, the Veteran underwent a private audiological examination.  Pure tone thresholds, in decibels, were, in pertinent part, as follows:



HERTZ



1000
2000
3000
4000
RIGHT
110
110
110
110
LEFT
85
110
110
110

The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 110 decibels in the right ear and 103.75 decibels in the left ear.  Speech recognition ability was 50 percent in the right ear and 57 percent in the left ear.  The audiological findings correspond to a level X hearing in the right ear and level IX hearing in the left ear.  38 C.F.R. § 4.85, Table VI.  Under Table VII, a designation of level X hearing in the right ear and level IX hearing in the left ear yields a 70 percent evaluation.  38 C.F.R. § 4.85, Diagnostic Code 6100.

The evidence from the August 2011 private audiological examination does reflect that the Veteran's right and left ear manifest pure tone thresholds of 55 decibels or more at each of the four specified frequencies (1000, 2000, 3000 and 4000 hertz).  38 C.F.R. § 4.86(a).  When applying the results from the August 2011 private audiological examination to Table VIA (level XI hearing in the right ear and level X hearing in the left ear), the Board observes that the result is a 90 percent evaluation.  As the evidence does not reflect that either ear manifests a pure tone threshold at 1000 hertz of 30 decibels or less and 70 decibels or more at 2000 Hertz, the Veteran's hearing does not meet the pattern of exceptional hearing impairment under 38 C.F.R. § 4.86(b).

On January 23, 2012 the Veteran underwent a VA audiological examination.  Pure tone thresholds, in decibels, were, in pertinent part, as follows:



HERTZ



1000
2000
3000
4000
RIGHT
55
65
80
85
LEFT
50
65
80
85

The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 71 decibels in the right ear and 70 decibels in the left ear.  Speech recognition ability, using the Maryland CNC test, was 78 percent in the right ear and 84 percent in the left ear.  The audiological findings correspond to a level IV hearing in the right ear and level III hearing in the left ear.  38 C.F.R. § 4.85, Table VI.  Under Table VII, a designation of level IV hearing in the right ear and level III hearing in the left ear yields a 10 percent evaluation.  38 C.F.R. § 4.85, Diagnostic Code 6100.

The evidence from the January 2012 audiological examination does reflect that the Veteran's right ear manifest pure tone thresholds of 55 decibels or more at each of the four specified frequencies (1000, 2000, 3000 and 4000 hertz).  38 C.F.R. § 4.86(a).  When applying the results from the January 2012 VA audiological examination to Table VIA (level VI hearing in the right ear and level III hearing in the left ear), the Board observes that the result is a 10 percent evaluation.  As the evidence does not reflect that either ear manifests a pure tone threshold at 1000 hertz of 30 decibels or less and 70 decibels or more at 2000 Hertz, the Veteran's hearing does not meet the pattern of exceptional hearing impairment under 38 C.F.R. § 4.86(b).

In October 2012 the Veteran underwent a VA audiological examination.  Pure tone thresholds, in decibels, were, in pertinent part, as follows:




HERTZ



1000
2000
3000
4000
RIGHT
55
65
75
85
LEFT
55
65
80
85

The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 70 decibels in the right ear and 71 decibels in the left ear.  Speech recognition ability, using the Maryland CNC test, was 84 percent in the right ear and 84 percent in the left ear.  The audiological findings correspond to a level III hearing in the right ear and level III hearing in the left ear.  38 C.F.R. § 4.85, Table VI.  Under Table VII, a designation of level III hearing in the right ear and level III hearing in the left ear yields a 0 percent evaluation.  38 C.F.R. § 4.85, Diagnostic Code 6100.

The evidence from the October 2012 VA audiological examination does reflect that the Veteran's right and left ear manifest pure tone thresholds of 55 decibels or more at each of the four specified frequencies (1000, 2000, 3000 and 4000 hertz).  38 C.F.R. § 4.86(a).  When applying the results from the October 2012 VA audiological examination to Table VIA (level VI hearing in the right ear and level VI hearing in the left ear), the Board observes that the result is a 30 percent evaluation.  As the evidence does not reflect that either ear manifests a pure tone threshold at 1000 hertz of 30 decibels or less and 70 decibels or more at 2000 Hertz, the Veteran's hearing does not meet the pattern of exceptional hearing impairment under 38 C.F.R. § 4.86(b).

In sum, a rating in excess of 40 percent for the period from January 29, 2010, through August 3, 2011, and from January 23, 2012, is denied, and a rating of 90 percent for the period from August 4, 2011, through January 22, 2012, is warranted.

The Board has reviewed the Veteran's statements regarding difficulties with hearing loss, and finds the Veteran to be credible and consistent in his reports of the difficulties in hearing that he experiences.  The Veteran is competent to give evidence about what he observes or experiences concerning his hearing loss.  See Layno v. Brown, 6 Vet. App. 465 (1994).  The Board recognizes the difficulties that the Veteran experiences as a result of his hearing loss, specifically including difficulty in being able to hear with background noise, and finds that such reports of difficulties are consistent with the speech recognition percentage scores and audiometric decibel thresholds as measured; however, the Board finds to be more probative the very specific audiometric test scores-both the decibel thresholds on audiometric testing and speech recognition scores as tested.  See  Lendenmann v. Principi, 3 Vet. App. 345 (1992) (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).  Without a showing of extraschedular factors, the Board is bound by law to apply VA's rating schedule based on the audiometry results and speech recognition scores.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

With the exception of the one staged period of increased rating, the preponderance of the evidence is against higher or additional staged ratings, and the benefit of the doubt rule is therefore not applicable.  38 C.F.R. §§ 4.3, 4.7.

Extraschedular Consideration

The potential application of the various other provisions of Title 38 of the Code of Federal Regulations have also been considered, including 38 C.F.R. § 3.321(b)(1) (2011), which provides procedures for referral or assignment of an extraschedular evaluation.  The question of an extraschedular rating is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

The VA Compensation and Pension Service is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321(b)(1).  If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  

Therefore, initially, there must be 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.  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.  Thun v. Peake, 22 Vet. App. 111 (2008).

In this Veteran's case, the Board recognizes and has considered the complaints of decreased auditory acuity and speech recognition impairment.  The schedular rating criteria contemplate the limitations and impairment caused by the Veteran's service-connected hearing loss disability.  The hearing loss disability rating on appeal is not one that is rated by analogy, but, instead, has been evaluated under applicable Diagnostic Code 6100, which schedular rating criteria specifically provides for ratings based on all levels of hearing loss, including exceptional hearing patterns which were demonstrated in this case, and as measured by both audiological testing and speech recognition testing.  Speech recognition testing is a schedular rating criterion that recognizes such an inability to understand certain words in conversation.  The fact that there is occupational impact does not render the rating schedule inadequate to evaluate the level of disability. 

Because the schedular rating criteria is adequate to rate the Veteran's service-connected hearing loss, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards.  For these reasons, the Board finds that the criteria for referral for extraschedular rating have not been met.  38 C.F.R. § 3.321(b)(1).




ORDER

A rating in excess of 40 percent for bilateral sensorineural hearing loss from January 29, 2010, through August 3, 2011, is denied.

A rating of 90 percent for bilateral sensorineural hearing loss from August 4, 2011, through January 22, 2012, is granted, subject to the applicable law governing the award of monetary benefits.

A rating in excess of 40 percent for bilateral sensorineural hearing loss from January 23, 2012, is denied.




____________________________________________
Michael J. Skaltsounis
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs