Citation Nr: 1311265	
Decision Date: 04/04/13    Archive Date: 04/19/13

DOCKET NO.  12-05 522	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to a compensable rating for bilateral sensorineural hearing loss.


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

S. M. Marcus, Counsel



INTRODUCTION

The Veteran served on active duty from January 1955 to January 1957.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.  

When the case was before the Board in October 2012, it was remanded for further development.  The case is once again before the Board for further appellate action.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  

FINDING OF FACT

The Veteran has hearing loss in both ears with no worse than Level VI for his right ear and no worse than Level I for his left ear.


CONCLUSION OF LAW

The criteria for a compensable rating for bilateral sensorineural hearing loss have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.85, Diagnostic Code 6100, § 4.86 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Assist and Notify

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  

They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  

The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The notice requirements were met in this case by a letter sent to the Veteran in May 2011, prior to the initial adjudication of his claim.  

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records are in the file, and so are identified private and VA medical records.   The Veteran at no time identified outstanding records relevant to the appellate time frame that he wanted VA to obtain or that he feels are relevant to the claim.  

The Veteran was provided an appropriate VA examination in May 2011 and pursuant to the Board's remand directive another appropriate VA examination in November 2012.  The examination reports are adequate because they were based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder, and appropriate diagnostic tests.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one).  

The Court has held that, in addition to providing objective test results, a VA audiologist must fully describe the effects of a disability on occupational functioning and daily activities.  Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  As discussed below, the examiners adequately addressed the functional effects of the Veteran's hearing loss.

There is no competent evidence indicating that there has been a material change in the severity of the Veteran's disability since he was last examined.  The Veteran has not reported receiving any recent treatment specifically for this condition for which evidence is not of record, and there are no records suggesting an increase in disability has occurred as compared to the prior VA examination findings.  

Thus, the Board finds that VA has satisfied the duty to assist the Veteran, and the Board may proceed to consider the merits of the claim.  

Legal Criteria

The evaluation assigned for a service-connected disability is established by comparing the manifestations shown with the criteria in the VA's Schedule for Rating Disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  

Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second.  To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes 11 auditory acuity levels, designated from Level I for essentially normal acuity through Level XI for profound deafness.  38 C.F.R. § 4.85.  

Where there is an exceptional pattern of hearing impairment, a rating based on pure tone thresholds alone may be assigned.  38 C.F.R. § 4.86(b).

Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (defective hearing is rated on the basis of a mere mechanical application of the rating criteria). 

Hearing loss disability is rated based on audiometry as specified by regulation.  Inasmuch as any private audiometry test is not in accordance with the regulatory specifications, it may not serve as the basis for the rating assigned.  The same is true for any hearing aid evaluations conducted as part of VA outpatient treatment.  Those evaluations are not necessarily conducted in the same manner as an official VA Compensation and Pension examination, unless marked as sufficient for rating purposes.  See 38 C.F.R. § 4.85(a) (An examination for hearing impairment for VA purposes must be conducted by a State-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC), and a puretone audiometry test).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  

To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.



Factual Background and Analysis

In accordance with 38 C.F.R. §§ 4.1, 4.2 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability.  The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes.  Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability.  In this regard the Board notes that where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

Following the receipt of the Veteran's increased rating claim, he was initially afforded a VA examination in May 2011.  The results of audiometric testing with puretone thresholds recorded in decibels were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
60
75
80
75
LEFT
15
20
45
55
65

The examiner noted there was no occupational impairment because the Veteran was not working.  His hearing loss, however, was described as affecting communication and requiring the television volume to be up high.

Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 78 percent in the right ear and 94 percent in the left ear. The average of the puretones between 1000 and 4000 Hertz was 72.5 for the right ear and 46.25 for the left.  Under Table VI in 38 C.F.R. § 4.85, the Veteran received a numeric designation of IV in the right ear and I for the left ear.  The right ear, however, shows "exceptional patterns of hearing impairment" as defined by 38 C.F.R. § 4.86 (i.e., puretone threshold at 1000, 2000, 3000 and 4000 Hertz is 55 decibels or more) and, therefore, Table VIa was also considered for the right ear.  Under Table Via, the right ear receives a numeric designation of VI, which is a higher numerical value than under Table VI.  Even so, the point where VI and I intersect on the Table VII reveals the disability level for the Veteran's hearing loss is noncompensable 

The Board notes that the Veteran submitted the report of a private audiological examination dated in July 2011.  The results did not differ much in comparison to VA examination findings other than speech discrimination scores.  As will be explained in greater detail below, whereas no VA examiner found speech discrimination scores for either ear to be below 76 percent, the private audiologist found a 12 percent speech discrimination score for the right ear and a 68 percent speech discrimination score for the left ear.  The audiologist, in an August 2011 opinion explained that the, "test battery is somewhat different than the one used by the VA."  

The disability ratings found in the VA regulations were specifically derived using the tests designated by VA, to include the Maryland CNC word recognition list.  Since the private audiologist did not use the VA-specified tests, the private test results cannot support an increase here.  See 38 C.F.R. § 4.85(a).

Pursuant to the Board's remand directive, the Veteran was afforded another VA examination in November 2012 during which clinical testing yielded results as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
60
65
85
80
LEFT
25
30
45
60
65

The examiner noted daily activities impairment to include trouble with communication.

Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 76 percent for the right ear and 100 percent for the left ear.  The average of the puretones between 1000 and 4000 Hertz was 72.5 for the right ear and 50 for the left.  Exceptional pattern of hearing impairment again applies for the right ear under 38 C.F.R. § 4.86, so consideration of both Table VI and VIa is warranted for the right ear.  Under Table VIa, the Veteran receives a numeric designation of VI for the right ear (which is more favorable than the IV numeric designation applicable under Table VI).  Under Table VI, the Veteran receives a numeric designation of I for the left ear.  Once again VI and I correspond to a noncompensable disability rating under Table VII  

The Veteran indicated he received hearing aids from VA in 2011 due to a worsened hearing impairment.  VA outpatient treatment records confirm the Veteran received new hearing aids, but a January 2011 re-evaluation of his hearing acuity indicates "about the same" results as 2004, seven years prior.  The audiologist also noted "very good" word recognition for the right ear and "excellent" word recognition for the left ear.  The VA outpatient treatment notes do not contain any specific auditory testing results, but the noted descriptions are generally consistent with the VA examination findings as described above.  

In short, the evidence shows that the Veteran's hearing loss is no worse than a numeric designation of VI in the right ear and a numeric designation of I in the left ear, which corresponds to a noncompensable disability rating under Table VII.

As noted, rating hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies.  The evidence here does not show that his hearing loss reached a compensable level of severity at any point during the period under appeal.  The Board acknowledges the Veteran's belief that his bilateral hearing loss has worsened to a degree that warrants a higher compensable rating, and it also acknowledges that he is competent to report his personal observations regarding his symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  However, the Veteran is a layperson without audiological training and, therefore, is not competent to opine regarding his current level of hearing loss in terms that would establish his entitlement to a higher rating under the applicable regulations and rating criteria.  Since the audiometric evidence shows that he has not experienced a level of bilateral hearing loss greater than the noncompensable level at any time during the period under appeal, an increased rating is not warranted.

Extra-schedular Consideration

The Board has considered whether this claim should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration.  In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).

The Veteran complains that his hearing loss impairs his ability to understand conversational speech in most situations.  The 2011 examiners noted the Veteran's impairment with conversation as well as having to have the television up at a high volume.  The Board does not doubt the Veteran's hearing loss affects his daily life.  There is no evidence to suggest, however, the Veteran's functional difficulties are over and beyond what is contemplated in the schedular criteria.  The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing.  Hence, the rating criteria contemplate the Veteran's symptomatology.  Referral for consideration of an extraschedular rating is therefore not warranted.  


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ORDER

Entitlement to a compensable rating for bilateral sensorineural hearing loss is denied.



____________________________________________
Shane A. Durkin 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs