Citation Nr: 1313157	
Decision Date: 04/19/13    Archive Date: 05/02/13

DOCKET NO.  09-28 053A	)	DATE
	)
	)

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


THE ISSUE

Evaluation of a bilateral hearing loss disability which was rated as 50 percent disabling from May 14, 1999 until the Veteran's death on April [redacted], 2010.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Christopher McEntee, Counsel 


INTRODUCTION

The Veteran had active service from September 1954 to April 1955.  The appellant is the Veteran's widow. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2009 rating decision of the Oakland, California (RO) of the Department of Veterans Affairs (VA), which denied the Veteran's July 2008 claim for increased rating for hearing loss.  The Veteran appealed the decision to the Board in August 2009.  The Veteran died on April [redacted], 2010, prior to a Board decision of his claim for increased rating.  

In April 2010, the Veteran's widow requested that she be substituted into the Veteran's claim pursuant to the Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat 4145, 4151, (2008) (codified at 38 U.S.C.A. § 5121A).  In a July 2011 letter to the appellant, the RO accepted the appellant's request to act as a substitute on behalf of the Veteran for the appeal that was pending at the time of his death.  

In addition to the paper claims file, there is a Virtual VA electronic claims file associated with this claim on appeal.  Relevant evidence has not been added to the claims file since the statement of the case dated in August 2009.  38 C.F.R. §§19.31, 20.1304 (2012).   

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

Throughout the period of the appeal, bilateral hearing loss disability has been manifested by no worse than level V hearing acuity in the right ear and level VIII hearing acuity in the left ear. 


CONCLUSION OF LAW

The criteria for a rating in excess of 50 percent for bilateral hearing loss disability 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 FINDING AND CONCLUSION

Substitution

As noted above, in April 2010, the Veteran's widow requested that she be substituted into the Veteran's claim for a higher rating for hearing loss.

The Board notes that the Director, Compensation and Pension Service, issued a Fast Letter that provided guidance on processing claims involving substitution of parties, in August 2010.  See Fast Letter 10-30.  The letter noted that unlike prior accrued benefits claims, the record is not closed on the date of death of the original claimant, but remains open for the submission and development of any pertinent additional evidence.  The letter provided guidance on specific procedures to follow noting that any eligible survivor submitting a claim for accrued benefits will automatically be considered as requesting to substitute and may be able to submit additional evidence in support of the claim.  The Fast Letter indicates that this type of a claim differs from an accrued benefits claim, in part, as evidence can be added to the record.  In most accrued benefits cases, a decision is based on the evidence that is on file at the time of the Veteran's death.  In these cases, involving substitution, additional evidence can be added to the file.  In this particular case, however, additional evidence has not been added to the claims file.  

VCAA

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.  Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008.

The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) 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).

In the case at hand, the record reflects that the Veteran was provided all required notice in a letter mailed in July 2008, prior to the adjudication of the claim in the February 2009 rating decision on appeal.   

Regarding the duty to assist, the Veteran's service treatment records (STRs) are associated with his claims files, and pertinent, available post-service treatment records (including VA and private records) have been secured.  Neither the Veteran nor the appellant has identified any other pertinent evidence that remains outstanding.  Moreover, the Veteran was afforded the appropriate VA examinations.  Accordingly, the Board concludes that VA has complied with its duty to assist the Veteran and, by substitution, the appellant.    

The Board will therefore address the merits of the claim.

Increased Rating for Bilateral Hearing Loss Disability

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10. 

It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2. 

It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence.  38 C.F.R. § 4.3. 

Where there is a question as to which of two evaluations shall be applied, the higher rating 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.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the appellant.  38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 

Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing.  See Lendenman v. Principi, 3 Vet. App. 345 (1992).

The rating schedule establishes 11 auditory hearing acuity levels based on average puretone thresholds and speech discrimination.  See 38 C.F.R. § 4.85.

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 audiometric test.  Examinations will be conducted without the use of hearing aids.  38 C.F.R. § 4.85 (a).

Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns).  The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect.  38 C.F.R. § 4.85 (b).

Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average.  Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86.  38 C.F.R. § 4.85 (c).

"Puretone threshold average," as used in Tables VI and VIa, is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  This average is used in all cases (including those in § 4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIa.  38 C.F.R. § 4.85 (d).

Table VII, "Percentage Evaluations for Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing.  The percentage evaluation is located at the point where the row and column intersect.  38 C.F.R. § 4.85 (e).

Provisions for evaluating exceptional patterns of hearing impairment are as follows:

(a) When the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 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 thresholds are 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 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 higher Roman numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86.

The Court has held that, "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."  Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). 

The Board notes that it has reviewed all of the evidence in the claims files, with an emphasis on the evidence relevant to this appeal.  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) (holding that VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, 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 was originally service connected for bilateral hearing loss in October 2000.  His hearing loss was rated as 50 percent disabling at that time.  In July 2008, he filed a claim for a rating in excess of 50 percent.  Subsequently, he underwent three VA audiology examinations and one private audiology examination during the appeal period.  

In the first of the VA examinations, on July 8, 2008, the VA examiner found the Veteran's responses unreliable and unsuitable for rating and adjudication.  In the second VA examination, conducted by a different VA audiologist on July 28, 2008, the Veteran's responses were again found to be inconsistent and unreliable, and were deemed unsuitable for rating.  

The Veteran underwent private audiology examination on July 14, 2008.  The results of the examination are not clear because the private examiner did not include in her report specific information regarding puretone thresholds between 1000-4000 Hertz.  Nevertheless, the Board has reviewed data noted on the report, seeking information that would corroborate the claim for a rating in excess of 50 percent under 38 C.F.R. §§ 4.85, 4.86.

In her report, the examiner stated "severe to profound" hearing loss, with loss greater on the right than the left.  But she also noted "good" speech discrimination scores.  The description of good speech discrimination is supported by scores noting speech discrimination of 84 percent in the right ear and 88 percent in the left ear.  This information would indicate that a rating in excess of 50 percent would be unwarranted under Table VI because the maximum hearing levels assigned - irrespective of what puretone thresholds averages were determined by the examiner - would be level IV in each ear.  Level IV hearing in each ear warrants only a 10 percent rating under Table VII.  Hence, using Table VI, the results of the private examination would not support a rating in excess of 50 percent.  

Determining whether, based on the July 2008 private results, a rating in excess of 50 percent would be warranted under Table VIA is not possible because, as indicated, the examiner did not specify the puretone thresholds between 1000-4000 Hertz.  The report indicates that puretone thresholds were measured, but the information is not provided.  This of course obviates calculation of the puretone threshold average for each ear.  However, the examiner did indicate speech reception thresholds (SRTs) "slightly better" than the puretone thresholds.  Indeed, the examiner indicated a SRT average of 80 decibels in the right ear and 60 decibels in the left ear.  Further, though the graphs detailed on the report do not clarify either type of threshold, they do indicate the divergence of SRTs and puretone thresholds between 1000 and 4000 Hertz, as articulated by the examiner.  

In sum, based on the discernible relevant information on the July 14, 2008 private report, a rating in excess of 50 percent would be unwarranted under 38 C.F.R. §§ 4.85, 4.86.   

The fourth report, based on the third VA examination, conducted on August 10, 2009, notes the following puretone thresholds, in decibels: 




HERTZ



500
1000
2000
3000
4000
RIGHT
50
65
75
65
70
LEFT
55
65
80
75
75

Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 96 percent in the right ear and 56 percent in the left ear.  The average of the puretone thresholds between 1000-4000 Hertz was 69 for the right ear and 74 for the left.

Applying the results to the Table VI chart, a puretone threshold average of 69 and a speech discrimination of 96 percent in the right ear will result in level II hearing for that ear.  A puretone threshold average of 74 and a speech discrimination of 56 percent in the left ear will result in level VIII hearing for that ear.  Applying these results to the Table VII chart, a level II for the right ear, combined with a level VIII for the left ear, will result in a 10 percent compensation evaluation.

Under the Table VIA chart, the noted puretone threshold averages result in level V hearing for the right ear and level VI hearing for the left ear which, under Table VII, results in a 20 percent compensation evaluation.  Furthermore, combining the level VIII hearing noted for the left ear using the Table VI chart, with the level V hearing noted for the right ear using the Table VIA chart, results in a 30 percent compensation evaluation under Table VII.  38 C.F.R. §§ 4.85, 4.86.   

In accordance with Martinak, the August 2009 examiner indicated that the Veteran had excellent speech recognition, and stated that the Veteran's hearing loss was "not as severe as what has been represented on this test[.]"  The examiner further noted that the Veteran, without the use of hearing aids, was able to engage the examiner in conversation "in a slightly lower than normal conversational tone and without the benefit of visual cues[.]"  The examiner further indicated that he stood behind the Veteran during the discussion.  

Considering the examination results noted above, a rating in excess of 50 percent is not warranted under the provisions of 38 C.F.R. § 4.85, Table VII, for the entire period of the appeal.

Extra-Schedular 

The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1).  The Court has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate.  Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the 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. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 

In the case at hand, the record reflects that the Veteran did not require frequent hospitalizations for his hearing loss disability and that the manifestations of his disability were not in excess of those contemplated by the schedular criteria.  In sum, there is no indication that the average industrial impairment from the disability would have been in excess of that contemplated by the assigned staged rating.  Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order.

As a preponderance of the evidence is against the assignment of a rating in excess of 50 percent for bilateral hearing loss, the benefit-of-the-doubt rule does not apply, and the appellant's claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert, supra. 


ORDER

Entitlement to an increased disability rating in excess of 50 percent for bilateral hearing loss disability is denied. 



____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs