Citation Nr: 1314360	
Decision Date: 05/01/13    Archive Date: 05/15/13

DOCKET NO.  13-03 148	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUE

Entitlement to an increased rating in excess of 50 percent for service-connected bilateral hearing loss.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

R. Anderson, Associate Counsel



INTRODUCTION

The Veteran had active military service from August 1944 to July 1946.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.  

In November 2011, he sought a rating increase in excess of 50 percent.  An April 2012 rating decision continued a 50 percent rating.  The Veteran filed a notice of disagreement (NOD) in May 2012, a statement of the case (SOC) was issued in November 2012, and a substantive appeal was received in January 2013.  

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

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 period on appeal, the Veteran's bilateral hearing loss disability is shown to be manifested at no worse than a level VIII hearing acuity in the right ear and a level IX hearing acuity in the left ear.


CONCLUSION OF LAW

For the period on appeal, the criteria for a rating in excess of 50 percent for the service-connected bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.85 including Tables VI, VIA, VII and Diagnostic Code 6100 (2011).  


REASONS AND BASES FOR FINDING AND CONCLUSION

I. 	Duty to Notify and Assist 
 
The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim.  See 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 in the 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.  Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002).  

These notice requirements apply to all five elements of a service connection claim, including: (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.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Proper VCAA notice must be provided to a claimant prior to the initial unfavorable decision on the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004).  

In this case, the Veteran was advised in March and May 2010, prior to the initial unfavorable rating decision, of the evidence and information necessary to substantiate his service connection claim, the responsibilities of the Veteran and VA in obtaining such evidence, and the evidence and information necessary to establish a disability rating and an effective date, in accordance with Dingess/Hartman.  

As to VA's duty to assist, the Veteran's service treatment records (STRs), and VA treatment records have been obtained and considered.  The Veteran was afforded VA examinations in September 2009 and March 2012, and medical opinions were obtained at those time.  The Board notes that the VA examination reports contain sufficiently specific clinical findings and informed discussion of the pertinent history and features (as well as functional impairment) of the disability on appeal to provide probative medical evidence adequate for rating purposes.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes); see also Martinak v. Nicholson, 21 Vet. App. 447 (2007) (finding that, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in the final examination report).  

While the Veteran argues (in his January 2012 substantive appeal) that he "was instructed by the audiologist to respond to prompts even if [he] did not hear them," which he says he complied with and therefore believes the "test was an error and did not properly represent [his] hearing loss," the Board has determined that this argument is unfounded.  A review of the record found no evidence to suggest that the March 2012 examination was inadequate.  The Board finds that the March 2012 VA examination report (a completed Disability Benefits Questionnaire) is responsive to the questions pertinent to the Veteran's claim.  In addition, the audiometry results demonstrated a decrease in the Veteran's puretone thresholds and speech recognition scores since his September 2009 VA examination, evidencing a slight worsening of his condition.  Since the opinions expressed in the March 2012 examination report are by a healthcare professional (who is qualified to provide the opinions sought), the medical questions posed are not of a complexity beyond the competence of an examiner, and the examiner explained the rationale for the opinions given, the Board finds that the March 2012 examination report, and the opinions expressed therein, are probative and adequate for rating purposes.  See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (VA may satisfy its duty to assist by providing a medical examination conducted by someone who is able to provide "competent medical evidence" under 38 C.F.R. § 3.159(a)(1)).

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

II. 	Analysis

The Veteran contends that he is entitled to a rating in excess of 50 percent for his service-connected bilateral hearing loss disability. 

In cases where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings.  See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2.  In such cases, staged ratings are appropriate when the factual findings show distinct time periods where the service- connected disability exhibits symptoms that would warrant different ratings for each such distinct time period.  The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). 

The rating for hearing loss is determined under the criteria in 38 C.F.R. §§ 4.85 and 4.86.  The Rating Schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on puretone thresholds and controlled speech discrimination testing using the Maryland CNC test.  Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear.  38 C.F.R. § 4.85.  

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

Ratings for hearing impairment are derived by the mechanical application of the criteria to the numeric designations assigned after audiometry evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).  

Where there is an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86, the rating may be based solely on puretone threshold testing.  An exceptional pattern of hearing impairment occurs when the puretone thresholds in each of the four frequencies 1000, 2000, 3000, and 4000 Hertz are 55 decibels or greater or when the puretone threshold at 1000 Hertz is 30 decibels or less, and the threshold at 2000 Hertz is 70 decibels or more.  38 C.F.R. § 4.86.

By way of the November 2010 rating decision, the RO granted the Veteran an increased rating of 50 percent for his service-connected bilateral hearing loss, effective June 2, 2006.  At his VA examination in September 2009, the Veteran's pure tone thresholds, in decibels, were: 




HERTZ



500
1000
2000
3000
4000
RIGHT
70
75
80
85
95
LEFT
75
80
85
100
105

Puretone threshold averages were 84 for the right ear and 93 for the left ear and his speech scores were 68 percent in the right ear and 62 percent in the left ear.  Using tables VI and VII from 38 C.F.R. §§ 4.85-86, the Veteran was assigned Level VII for the right ear and Level VIII for the left ear, resulting in a 40 percent rating under Table VII, Diagnostic Code 6100.

However, the Veteran's hearing impairment at that examination met the requirements of the provisions of 38 C.F.R. § 4.86(b) governing exceptional patterns of hearing impairment.  Specifically, the Veteran's puretone thresholds at 1000, 2000, 3000, and 4000 Hertz were 55 decibels or more.  Applying the Veteran's puretone threshold average to Table VIA results in right ear hearing of Level VIII and left ear hearing of Level IX.  Thus, the Level VII increased to a VIII, and Level VIII increased to IX, due to the considerations of 38 C.F.R. § 4.86, resulting in a 50 percent evaluation under Table VII.  However, there was no basis for assigning a rating higher than 50 percent.

At his VA examination in March 2012, the Veteran exhibited pure tone thresholds, in decibels, as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
85
75
75
80
95
LEFT
85
80
85
100
105

Puretone threshold averages were 81 for the right ear and 92 for the left ear and his speech scores were 52 percent in the right ear and 48 percent in the left ear.  Using tables VI and VII from 38 C.F.R. §§ 4.85, the Veteran is assigned Level VIII for the right ear and Level IX for the left ear, resulting in a 50 percent rating under Table VII, Diagnostic Code 6100.  

Since the Veteran's hearing impairment continued to meet the exceptional patterns of hearing impairment requirements, his puretone threshold averages were considered under 38 C.F.R. § 4.86(b).  Applying his puretone threshold averages to Table VIA resulted in right ear hearing decreasing from Level VIII to VII, and no change in his left ear hearing of Level IX.  Regardless, a 50 percent evaluation under Table VII was found to be warranted using the Veteran's puretone threshold averages under both Table VI and VIA.  There is no basis for assigning a rating higher than 50 percent and there is no evidence that the criteria for a rating in excess of 50 percent have been met at any time.  

The Veteran's contentions regarding his hearing deficiencies have been considered and there is no question that he honestly believes that he is entitled to a higher rating for his hearing loss.  While the Veteran is competent to indicate his hearing has worsened, he is not competent to show the extent to which his hearing has worsened.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (layperson is competent to report lay-observable symptoms (problems hearing), but lacking in medical training and expertise, is not competent to diagnose a medical condition or provide an opinion on causation).  Consequently, his contentions cannot be used as competent medical evidence to show that an increased rating is warranted under the VA schedular rating criteria for hearing loss.  As noted above, ratings for hearing loss are determined by the mechanical application of test results to the tables provided in this document.  The evidence does not demonstrate that the Veteran has medical expertise in this arena.  The results of specific testing conducted by skilled individuals is more probative that the lay opinions of record.  

The Board has also considered whether the Veteran's disability is so exceptional as to require consideration of an extraschedular rating.  In Thun v. Peake, the Court held that determining whether a claimant is entitled to an extraschedular rating is a three-step inquiry.  22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 2009).  The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate."  Id.  If the adjudicator determines that this is so, the second step of the inquiry requires the adjudicator to "determine whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization.  Id. at 116.  Finally, if the first two steps of the inquiry have been satisfied, the third step requires the adjudicator to refer the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extraschedular rating is warranted.  Id.  

Even though the Veteran contends that his hearing loss interferes in his daily life because he has trouble hearing in all communication situations, he has not presented any evidence that his particular service-connected bilateral hearing loss results in a unique disability that is not addressed by the rating criteria.  There is no evidence of any interference with employment as the Veteran has not been employed at any time during the pendency of the appeal.  There is no basis for referral of the case for consideration of an extraschedular disability evaluation.

The evidence of record is also sufficient for consideration of the functional effects of the Veteran's hearing loss disability.  See Martinak v. Nicholson, 21 Vet. App. 447 (2007).  The above discussion addresses the Veteran's complaints and results of the findings of the multiple examinations.  There is no objective evidence that any of the VA examinations were not conducted in accordance with the requirements found at 38 C.F.R. § 4.85(a).  There is no impact on employment as the Veteran has been unemployed during the period on appeal.  He has not alleged he has sought employment and was not hired or was hindered in obtaining employment because of his hearing loss.  The examiners and the Veteran's statements relate his complaints that he has trouble hearing in all communication situations.  Thus, the evidence of record is adequate to assess the Veteran's hearing loss disability.

Here, the mechanical application of the Rating Schedule clearly indicates that the Veteran is not entitled to a rating in excess for his bilateral hearing loss.  The Board has considered the doctrine of reasonable doubt and finds that, if reasonable doubt can be applied where the Rating Schedule mandates this result, the bilateral hearing impairment more nearly approximates a 50 percent evaluation.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.655(b), 4.3, 4.7, 4.85, Diagnostic Code 6100.

Lastly, the Board notes that the Veteran claims to have been assigned a 60 percent disability rating for his hearing loss at one point in time.  However, there is no evidence in the record to substantiate this claim.  Instead, the record shows that a March 1999 rating decision assigned the Veteran a 40 percent rating for his service-connected bilateral hearing loss and 10 percent (the maximum rating available) for his service-connected tinnitus.  A January 2007 rating decision increased his hearing loss rating to 50 percent.  This increase resulted in a combined evaluation for compensation of 60 percent (for his service-connected bilateral hearing loss and tinnitus) which is still in effect at this time.  


ORDER

An increased rating in excess of 50 percent for the service-connected bilateral hearing loss is denied.  



____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs