Citation Nr: 1313895	
Decision Date: 04/25/13    Archive Date: 05/03/13

DOCKET NO.  11-18 442	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut


THE ISSUE

Entitlement to an initial compensable rating for bilateral hearing loss.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran 


ATTORNEY FOR THE BOARD

A. Lindio, Counsel


INTRODUCTION

The Veteran had active service from September 1956 until September 1958.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut.     

In November 2012, the Veteran testified before the undersigned Veterans Law Judge sitting at the RO.  A transcript of the hearing has been associated with the claims file.  

This matter was previously before the Board in January 2013.  At that time, the Board remanded the claim for additional development.

The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file pertaining to the Veteran.  A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal, other than the transcript of the November 2012 Board hearing and recent VA medical records.  Those VA medical records were considered by the agency of original jurisdiction (AOJ) in the March 2013 supplemental statement of the case.

The Board notes that the February 2013 VA examiner found that the Veteran's tinnitus was at least as likely as not caused by or a result of military noise exposure.  As such, if the Veteran wishes to file a claim for service connection for tinnitus, he should so inform the RO.     

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

For the entire appeal period, the Veteran has no worse than Level I hearing in the right ear and Level II hearing in the left ear.


CONCLUSION OF LAW

The criteria for an initial compensable rating for bilateral hearing loss are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.10, 4.85, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDING 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 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  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).  

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits.  

The Board observes that the Veteran has appealed with respect to the propriety of the initially assigned rating for his bilateral hearing loss from the original grant of service connection.  VA's General Counsel has held that no VCAA notice is required for such downstream issues.  VAOPGCPREC 8-2003, 69 Fed. Reg. 25180  (May 5, 2004).  In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated."  Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006).  In this case, the Veteran's claim for service connection for bilateral hearing loss was granted and an initial rating was assigned in the July 2010 rating decision on appeal.  Therefore, as the Veteran has appealed with respect to the initially assigned rating, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

Relevant to the duty to assist, the Veteran's VA and private treatment records dated through February 2013 have been obtained and considered.  He has not identified any additional, outstanding records that have not been requested or obtained.  

Additionally, the Veteran was afforded VA examinations in June 2010 and February 2013 in conjunction with his claim.  Neither the Veteran nor his representative has alleged that such examinations are inadequate for rating his service-connected bilateral hearing loss.  Furthermore, the Board finds that the examinations are adequate as they include an interview with the Veteran, a review of the record, and a full audiologic examination, addressing the relevant rating criteria.  

In this regard, the Board notes that, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the 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.  In this regard, the Board finds that both VA examiners addressed the functional effects resulting from the Veteran's bilateral hearing loss.  Specifically, the June 2010 VA examiner noted that the Veteran indicated that his hearing loss had gotten progressively worse, drove his wife nuts, and caused him to ask people to repeat themselves constantly.  Additionally, the February 2013 VA examiner specifically noted that, even with hearing aids, the Veteran complained of difficulty hearing his spouse and having to ask for repetition during conversation.  The examiner also noted that the Veteran may have occasional difficulty in challenging listening environments with excessive background noise.  Therefore, as the June 2010 and February 2013 VA examiners addressed the functional effects of the Veteran's bilateral hearing loss, the Board finds that such examinations comply with the Court's holding in Martinak, and no further examination is necessary. 

As noted in the Introduction, the Board remanded the case for additional development in January 2013.  As discussed in the preceding paragraphs, VA treatment records dated through February 2013 have been obtained and the Veteran was afforded a VA examination in February 2013 so as to determine the current severity of his bilateral hearing loss in accordance with the January 2013 remand directives.  Therefore, the Board finds that the AOJ has substantially complied with the January 2013 remand directives such that 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.

Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. Fenderson v. West, 12 Vet. App. 119 (1999).

The Veteran's service-connected bilateral hearing loss is currently assigned a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100, effective April 15, 2010.  The Veteran contends that his hearing disability is worse than the currently assigned evaluation. Therefore, he alleges that he is entitled to an initial compensable rating for such disability.

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.

July 2006 private medical records document treatment for bilateral hearing loss from Beltone.  The examiner generally documented Maryland CNC list discrimination findings of 96 percent for the right ear and 92 percent for the left ear. 
The Board notes that the Beltone records include private audiograms, which are in graph form and the results have not been interpreted.  However, as fact-finding is a proper function of the Board, the Board has interpreted the graphical representations contained in the audiograms into numerical results so as to rate the Veteran's bilateral hearing loss disability under the appropriate Diagnostic Code.  See Kelly v. Brown, 7 Vet. App. 471, 474 (1995).

The Beltone private audiogram reveals that pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
AVERAGE
RIGHT
20
45
60
55
45
LEFT
20
50
65
60
48.75

Word recognition testing revealed speech recognition ability of 96 percent for the right ear and 92 percent for the left ear.  No exceptional pattern of hearing loss is demonstrated.  These audiometry test results equate to Level I hearing in each ear using Table VI. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in the right ear and Level I hearing in the left ear results in a noncompensable disability rating. 38 C.F.R. § 4.85.

A June 2010 VA audiological examination revealed the following pure tone thresholds, measured in decibels:




HERTZ



1000
2000
3000
4000
AVERAGE
RIGHT
20
45
55
55
44
LEFT
15
50
55
70
48

Word recognition testing revealed speech recognition ability of 96 percent bilaterally.  No exceptional pattern of hearing loss is demonstrated.  These audiometry test results equate to Level I hearing in each ear using Table VI. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in the right ear and Level I hearing in the left ear results in a noncompensable disability rating. 38 C.F.R. § 4.85.

In May 2011, the Veteran underwent audiological re-evaluation by VA.  The VA medical provider did not provide pure tone threshold measurements in decibels, but did note speech testing of 92 percent on the right and 88 percent on the left.  As it is unclear if this word recognition testing was conducted using the Maryland CNC list as required by VA regulations, these results cannot be used to rate the Veteran's bilateral hearing loss. 

A February 2013 VA audiological examination revealed the following pure tone thresholds, measured in decibels:





HERTZ



1000
2000
3000
4000
AVERAGE
RIGHT
20
50
60
60
48
LEFT
25
55
60
60
50

Word recognition testing revealed speech recognition ability of 94 percent in the right ear and 84 percent in the left ear. No exceptional pattern of hearing loss is demonstrated.  These audiometry test results equate to Level I hearing in the right ear and Level II hearing in the left ear using Table VI. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in the right ear and Level II hearing in the left ear results in a noncompensable disability rating.  38 C.F.R. § 4.85.

The Board further finds that the evidence of record reflects no certification of language difficulties, inconsistent speech audiometry scores, or pure tone threshold findings of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz as to warrant consideration as an exceptional pattern of hearing impairment.  38 C.F.R. § 4.86(b).

Therefore, the Board finds that, for the entire appeal period, the Veteran has no worse than Level I hearing in the right ear and Level II hearing in the left ear. As such, he is not entitled to an initial compensable rating for his bilateral hearing loss.
 
To the extent that the Veteran contends that his hearing loss is more severe than currently evaluated, the Board observes that the Veteran, while competent to report symptoms such as difficulty understanding speech, particularly in the presence of excessive background noise, and requesting people to repeat themselves constantly, he is not competent to report that his hearing acuity is of sufficient severity to warrant a 10 percent or greater evaluation 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 of the difficulty understanding speech, particularly in the presence of excessive background noise, and requesting people to repeat themselves constantly.  Even after considering such contentions as to the effects of the disability on his daily life, the Board finds that the criteria for a compensable rating are not met. See 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). The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected bilateral hearing loss; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted.

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 difficulty understanding speech, particularly in the presence of excessive background noise, and requesting people to repeat themselves constantly, the Board finds that the Veteran's bilateral hearing loss is fully addressed by the rating criteria under which such disability is rated. Specifically, such criteria contemplates the difficulty the Veteran has hearing in all situations, to include with background noise.  In this regard, the rating schedule takes into account 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 is 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.  As such, 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 a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. In this case, the record does not reflect, and the Veteran does not allege, that he is unemployable due to his bilateral hearing loss.  Moreover, the February 2013 VA examiner opined that the Veteran's hearing loss did not render the Veteran unable to secure and maintain substantially gainful employment.  Therefore, the Board finds that a TDIU is not raised by the record.

The Board has also considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for an initial compensable rating for bilateral hearing loss.  Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his initial rating claim must be denied.  38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7.


ORDER

An initial compensable rating for bilateral hearing loss is denied.



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



Department of Veterans Affairs