Citation Nr: 1312863	
Decision Date: 04/17/13    Archive Date: 05/02/13

DOCKET NO.  11-02 413	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUE

Entitlement to a rating in excess of 40 percent prior to March 6, 2013, and in excess of 50 percent thereafter for bilateral hearing loss.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Andrew Ahlberg, Counsel

INTRODUCTION

The Veteran served on active duty from June 1953 to November 1953. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.  The case was remanded by the Board for additional development in January 2013 and now returns for appellate review.  

After completion of development requested by the January 2013 remand, a March 2013 rating decision increased the Veteran's rating for bilateral hearing loss to 50 percent, effective March 6, 2013.  As the 50 percent rating was not assigned effective from the date of receipt of the claim for increase and there is no clearly expressed intent to limit the appeal to entitlement to a specified rating, the issue remains in appellate status.  AB v. Brown, 6 Vet. App. 35, 39 (1993).  Therefore, such has been characterized as shown on the first page of this decision.    

In September 2012, the RO notified the Veteran that he had been scheduled for his requested video-conference hearing before a Veterans Law Judge of the Board in December 2012.  Subsequently, by correspondence dated later in September 2012, the Veteran indicated that he did not wish to have a hearing.  Therefore, his request for a Board hearing is considered withdrawn.  38 C.F.R. §§ 20.702(e), 20.704(e) (2012). 

The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims.  As will be discussed herein, a review of the Virtual VA claims file reveals additional VA treatment records that were considered in the March 2013 supplemental statement of the case.

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.  For the appeal period prior to March 6, 2013, the Veteran has no worse than Level VII hearing in both ears.  

2.  For the appeal period beginning March 6, 2013, the Veteran has no worse than Level VIII hearing in both ears.  


CONCLUSION OF LAW

The criteria for a rating in excess of 40 percent prior to March 6, 2013, and in excess of 50 percent thereafter for bilateral hearing loss are not met.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 (2012).
  
 
REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a).  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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim.  Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473   (2006). 

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328   (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

For an increased-compensation claim, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). 

In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA.  Specifically, an April 2010 letter, sent prior to the initial unfavorable decision issued in June 2010, advised the Veteran of the evidence and information necessary to substantiate his increased rating claim as well as his and VA's respective responsibilities in obtaining such evidence and information.  Additionally, such letter advised him of the information and evidence necessary to establish an effective date in accordance with Dingess/Hartman, supra. 

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. 
§ 3.159. 

Relevant to the duty to assist, the Veteran's service treatment records as well as post-service VA treatment records have been obtained and considered.  With respect to the request in the January 2013 remand that all relevant records of the Veteran's treatment for hearing loss at VA medical facilities in Kansas City, Missouri, and Fayetteville, Arkansas, be obtained, computer generated records reflect that the AMC contacted these facilities in March 2013 and April 2013 to obtain these records.  The Virtual VA file (VA's electronic data storage system) documents receipt of such additional records, to include a November 2007 VA audiology clinic report indicating the Veteran was mailed a new Starkey "Destiny" hearing aid due to a constant "clicking" sound with the hearing aids he was using at that time and a February 2011 VA audiology clinic report discussing an adjustment to the Veteran's hearing aids.  No other relevant treatment reports are contained in the Virtual File, and the March 2013 supplemental statement of the case documents consideration of the additional records received in the Virtual File.  
 
Additionally, the Veteran was afforded VA audiologic examinations in May 2010, June 2012, and March 2013 so as to adjudicate his increased rating claim.  Neither the Veteran nor his representative has alleged that such are inadequate for rating purposes.  Moreover, the Board finds that the examinations are adequate to evaluate the Veteran's service-connected bilateral hearing loss as they include an interview with the Veteran, a review of the record, and a full audiological examination, addressing the relevant rating criteria.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). 

The Board also notes that, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the U.S. Court of Appeals for Veterans Claims (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 his or her final report.  The Board observes that each of the examination reports include the examiners' comments regarding the functional effect of the Veteran's bilateral hearing loss.  Therefore, the Board finds that the examination reports of record are adequate to adjudicate the Veteran's increased rating claim and no further examination is necessary.

As indicated previously, this case was remanded in January 2013 so as to obtain outstanding VA treatment records from the facilities located in Kansas City, Missouri, and Fayetteville, Arkansas.  Records from such facilities were subsequently obtained and associated with the Virtual File.  Therefore, the Board finds that the development requested in the January 2013 remand has been substantially accomplished, and no further action is necessary in this regard.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). 

Thus, the Board finds that VA has fully satisfied the duty to assist.  In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding.  Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim.

II.  Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R. 
§ 4.7.  All benefit of the doubt will be resolved in the Veteran's favor.  38 C.F.R. 
§ 4.3.

While the Veteran's entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  However, the Court has since held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.  

Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second.  To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness.  38 C.F.R. § 4.85(h), Table VI.  In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met.  The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  

The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, Table VIA, in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule.  38 C.F.R. 
§ 4.85.  An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz  is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  38 C.F.R. § 4.86.

The Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and the Virtual VA file.   Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. 

Summarizing the pertinent evidence and adjudicative history with the above legal requirements in mind, the Board notes that service connection for bilateral hearing loss was granted by a June 1980 rating decision.  A 40 percent rating was assigned.   This rating was continued thereafter, with a March 1998 Board decision denying a claim for increase, until the aforementioned March 2013 rating decision that increased the rating to 50 percent, effective March 6, 2013. 

With respect to the recent pertinent evidence, on the authorized audiological evaluation in conjunction with a May 2010 VA examination, pure tone thresholds, in decibels, were as follows:




HERTZ



Avg.
1000
2000
3000
4000
RIGHT
76
75
80
75
75
LEFT
76
75
75
85
75

Speech audiometry revealed speech recognition ability of 70 percentage in the right ear and of 78 percent in the right ear.  The examiner noted that although the Veteran was retired, his hearing loss had resulted in significant occupational effects, with the Veteran reporting that he "[c]ant hear a thing" without hearing aids.   

On authorized audiological evaluation at a June 2012 VA examination, pure tone thresholds, in decibels, were as follows:





HERTZ



Avg.
1000
2000
3000
4000
RIGHT
80
75
85
80
80
LEFT
81
80
80
85
80

Speech audiometry revealed speech recognition ability of 74 percent in the right ear and 78 percent in the left ear.

The examination report noted that the Veteran's hearing loss impacted the ordinary conditions of daily life including the ability to work, and the response to questioning by the audiologist as to the impact of the Veteran's hearing loss on functioning was that he "misses" and/or misunderstands much of what is said to him, and that this causes him frustration.  He reported that his friends told him that his hearing is getting worse, that he misses much of what they say to him, and that they have to repeat what they tell him.  The Veteran reported that a "soft voice" was "very hard" for him to hear.    

On the authorized audiological evaluation in conjunction with a March 2013 VA examination, pure tone thresholds, in decibels, were as follows:




HERTZ



Avg.
1000
2000
3000
4000
RIGHT
89
85
90
90
90
LEFT
85
85
85
85
85

Speech audiometry revealed speech recognition ability of 82 percent in each ear. 

The examination noted that the hearing loss impacted ordinary conditions of daily life, including the ability to work, and in response to questioning by the audiologist as to the impact the Veteran's hearing loss had on work functioning was that he wore hearing aids after his discharge from service while he worked.  He responded that his hearing loss was "nerve wracking" in terms of functioning at home due to missing much of what people tell him.  

The May 2010 audiometric readings on Table VI of 38 C.F.R. § 4.85 results in Level V hearing in the left ear and Level VI hearing in the right ear.  However, given the fact that the readings from this examination show "exceptional" hearing impairment as defined by 38 C.F.R. § 4.86, application of Table VIA to these findings would demonstrate Level VI hearing in each ear.  Considering the more favorable percentage ratings for hearing impairment found in Table VIA, Level VI hearing in each ear results in a 30 percent disability rating under Table VII.  38 C.F.R. § 4.85.  However, given the fact that the Veteran's 40 percent rating had been in effect for more than 20 years, the 40 percent rating is "protected" and was therefore continued by a June 2010 rating decision and will not be reduced herein.  See 38 C.F.R. § 3.951.  

The June 2012 VA audiometric readings on Table VI of 38 C.F.R. § 4.85 result in Level VI hearing for the right ear, and Level V hearing for the left ear.  As the readings from this examination again show exceptional hearing impairment as defined by 38 C.F.R. § 4.86, application of Table VIA to these findings would demonstrate Level VII hearing in each ear.  Considering the more favorable percentage ratings for hearing impairment found in Table VIA, Level VII hearing in each ear results in a 40 percent disability rating under Table VII.  38 C.F.R. § 4.85.

With respect to the readings from the March 2013 VA examination under Table VI, such results demonstrate Level V hearing in the right and left ear.  However, as these results again show exceptional hearing loss under 38 C.F.R. § 4.86,  application of Table VIA to these findings demonstrate Level VIII hearing in each ear.  With consideration of the more favorable percentage ratings for hearing impairment found in Table VIA, Level VIII hearing in each ear results in a 50 percent disability rating under Table VII.  38 C.F.R. § 4.85.  

As indicated, the results from the June 2012 VA audiometric examination warrant a 40 percent rating under the applicable rating criteria and the results from the March 2013 VA audiometric examination warrant a 50 percent rating.  In assigning the 50 percent rating, the effective date chosen for this rating by the AMC was the date that it was factually ascertainable that the criteria for a 50 percent rating were met; namely, the date of the March 2013 VA examination, or March 6, 2013.  Thus, while the argument by the Veteran's representative in April 2013 expressing disagreement with the effective date assigned for the 50 percent rating on the basis that the "first indication" of a 50 percent level of hearing loss of disability existed prior to the time of this examination has been considered, a 50 percent rating may not be assigned prior to March 6, 2013, i.e., the date of the VA examination from which it was factually ascertainable that an increase had occurred.  38 C.F.R. § 3.400(o).  In making this determination, there was clearly no "indication" that the criteria for a 50 percent rating were met at the time of the May 2010 and June 2012 VA examinations given the audiometric findings from these examinations as set forth above.  In short, given these audiometric findings and the manner in which ratings for hearing loss disability are determined, the assignment of a 50 percent rating earlier than March 6, 2013, is simply not warranted.  Lendenmann, supra (assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered). 
  
To the extent that the Veteran contends that his hearing loss is more severe than has been evaluated, the Board observes that the Veteran, while competent to report symptoms such as an inability to hear without hearing aids, missing or misunderstanding words, and difficulty hearing soft voices, is not competent to report that his hearing acuity is of sufficient severity to warrant increased compensation under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to have.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370   (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). 

Despite the foregoing, the Board acknowledges the Veteran's reports regarding the severity of his bilateral hearing loss, to include an inability to hear without hearing aids, missing or misunderstanding words, and difficulty hearing soft voices.  However, after considering such contentions as to the effects of the disability on his daily life, the Board finds that the criteria for increased compensation are not met.  See Lendenmann, supra.  

In short, the Board has considered whether increased compensation may be assigned for the Veteran's service-connected bilateral hearing loss, to include on the basis of any additional staged ratings under Hart, supra.  For the reasons stated above, the Board finds that a rating in excess of 40 percent for bilateral hearing prior to March 6, 2013, and in excess of 50 percent thereafter may not be assigned, to include on the basis of an additional staged rating.  

Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration.  An extra-schedular disability rating is warranted 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 that application of the regular schedular standards would be impracticable.  38 C.F.R. § 3.321(b)(1). 

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied.  Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under 
§ 3.321 is a three-step inquiry.  First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  In this regard, the Court indicated that 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.  Under the approach prescribed by VA, 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. 

Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization."  Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto 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 claimant's disability picture requires the assignment of an extra-schedular rating.  Id.  

The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected bilateral hearing loss with the established criteria found in the rating schedule.  While the Veteran has described the functional impairment he experiences as a result of his bilateral hearing loss, to include an inability to hear without hearing aids, missing or misunderstanding words, and difficulty hearing soft voices, the Board finds that the Veteran's bilateral hearing loss symptoms are fully addressed by the rating criteria under which such disability is rated.  Specifically, such criteria contemplate the difficulty the Veteran has hearing in all situations.  In this regard, the rating schedule contemplates both the average decibel loss as well as speech discrimination scores for hearing loss.  Therefore, the Board finds that such manifestations of the Veteran's bilateral hearing loss are contemplated by the rating schedule.  As such, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology for his service-connected disability, and that the rating schedule is adequate to evaluate the Veteran's disability picture.  Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization.  Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted.  Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). 

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for total disability rating for compensation based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record.  The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability.  Id.  In this case, the Veteran has not alleged during the course of the appeal that his hearing loss rendered him unemployable.  The VA examination reports did note that the Veteran's hearing loss had impacted employment, but while the Veteran indicated  at the most recent VA examination that, when he was working, he utilized hearing aids, none of the these examination reports, or any other objective evidence of record, suggest that his service-connected hearing loss rendered him unemployable.  Therefore, a claim for a TDIU is not raised and need not be further addressed.

In sum, the Board finds that the preponderance of the evidence is against a rating in excess of 40 percent to March 6, 2013, and in excess of 50 percent thereafter for bilateral hearing loss; as such, the benefit of the doubt doctrine is not applicable and the claim must be denied.  Gilbert, 1 Vet. App. at 49. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. 


ORDER

A rating in excess of 40 percent prior to March 6, 2013, and in excess of 50 percent thereafter for bilateral hearing loss is denied.



____________________________________________
A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs