Citation Nr: 1314394	
Decision Date: 05/01/13    Archive Date: 05/15/13

DOCKET NO.  10-13 270	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to a compensable evaluation for service connected bilateral hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Tanya A. Smith, Counsel


INTRODUCTION

The Veteran served on active duty from June 1945 to November 1946.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Atlanta, Georgia, Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for bilateral hearing loss and assigned a noncompensable evaluation.  The Veteran perfected an appeal of the initial rating assigned to the Board.  

In an April 2011 decision, the Board denied the claim.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).  In February 2012, the Court issued a memorandum decision, vacated the Board's decision, and remanded the matter to the Board for further proceedings consistent with its decision.  The case was subsequently returned to the Board.  In August 2012, the Board remanded the case for further evidentiary development in accordance with the memorandum decision.  The case has now been returned to the Board for further appellate action.  

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

In September 2008, the Veteran's bilateral hearing loss was manifested by Level I hearing acuity in both ears; in January 2013, he exhibited Level I hearing acuity in the right ear and Level III hearing acuity in the left ear.


CONCLUSION OF LAW

The criteria for a compensable evaluation for service-connected bilateral hearing loss have not been met.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.85, 4.86, 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), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). 

The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012).  The requirements apply to all five elements of a service connection claim:  veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule).  Moreover, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (reaffirming that the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect).  

In a March 2008 VCAA letter sent to the Veteran prior to the appealed November 2008 rating decision, the RO provided notice to the Veteran regarding what information and evidence was needed to substantiate the underlying service connection claim as well as what information and evidence must be submitted by the Veteran and the types of evidence that would be obtained by VA.  The 2008 VCAA letter also advised the Veteran how disability evaluations and effective dates are assigned, and the type of evidence that impacts those determinations.  The Veteran is appealing the initial rating assigned following a grant of service connection.  The VCAA notice provided before service connection was granted was legally sufficient.  The Board finds that VA's duty to notify has been met. 

The record also reflects that VA has made reasonable efforts to assist the Veteran in the development of his claim.  Specifically, the information and evidence that have been associated with the claims file includes service treatment records and VA treatment records dated from December 2003 to January 2013 from the Atlanta VA Medical Center (MC) (parent facility) and the Austell/Smyrna Community Based Outpatient Clinics (Atlanta VAMC Clinics).  Also, the Veteran was afforded 
a fee-basis VA examination by QTC Medical Services in September 2008 and a VA examination in January 2013.  The Board finds that the VA examination reports are adequate for evaluation purposes because the examiners either reviewed the claims file or were otherwise informed of the relevant facts by the medical history provided by the Veteran, considered the contentions of the Veteran, thoroughly examined the Veteran, and addressed the relevant rating criteria, including the functional effects caused by the Veteran's hearing loss.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008); see also Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) (providing that a VA medical examiner must, in the context of an audiological examination, fully describe the functional effects caused by a hearing disability in his or her final report).  Lastly, the record reflects that the Veteran is in receipt of benefits from the Social Security Administration (SSA) but on account of age not disability.  See SSA Inquiry generated in August 2009.  Accordingly, there is no duty to obtain records from the SSA.  See Golz v. Shinkseki, 590 F.3d 1317 (Fed. Cir. 2010) (providing that when VA is put on notice of the existence of SSA records that have the reasonable possibility of substantiating the Veteran's claim for benefits, it must seek to obtain those records before proceeding with the appeal).  The Board has also reviewed the Veteran's paperless Virtual VA claims file, a highly secured electronic repository that is used to store and review documents involved in the claims process.  It does not contain any evidence not already in the paper claims folder or considered by the RO.  

As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  The Veteran was an active participant in the claims process, submitting statements setting forth his contentions.  Thus, he has been provided with a meaningful opportunity to participate in the claims process and has done so.  The Board finds that VA's duty to assist has been met.  Also, the Board finds that there has been substantial compliance with the directives of the August 2012 Remand.  See Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

II.	Pertinent Laws and Regulations

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent 
the average impairment of earning capacity resulting from disability.  38 U.S.C.A. 
§ 1155 (West 2002); 38 C.F.R. § 4.1 (2012).  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1 (2012).  Other applicable, general policy considerations are:  interpreting reports of examination in 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, 38 C.F.R. § 4.2 (2012); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2012); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2012); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10 (2012).  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Where the claimant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999).

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.  38 C.F.R. § 4.85(a) (2012). 
Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 Hertz.  To evaluate the degree of disability from bilateral service- connected defective hearing, the Rating Schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness.  38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012).  The evaluation of hearing impairment applies a rather structured formula that is essentially a mechanical application of the rating schedule to numeric designations after audiology evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

Under 38 C.F.R. § 4.86, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(a) (2012).  Further, when the average puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Level 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 next higher Level.  Each ear will be evaluated separately. 38 C.F.R. § 4.86(b) (2012).



III.	Analysis

The Veteran contends that the severity of his bilateral hearing loss warrants a higher disability rating.  

In a November 2008 rating decision, the RO granted service connection for bilateral hearing loss and assigned a noncompensable evaluation under Diagnostic Code 6100 effective February 7, 2008, the date of receipt of the Veteran's original claim for compensation benefits. 

In September 2008, audiometric testing conducted by QTC Medical Services indicated that the Veteran exhibited puretone thresholds, in decibels, as follows:




HERTZ



1000
2000
3000
4000
AVG
RIGHT
25
35
75
80
54
LEFT
30
35
70
90
56

Speech audiometry revealed speech recognition ability of 92 percent in both ears.  

In January 2013, VA audiometric testing indicated that the Veteran exhibited puretone thresholds, in decibels, as follows:




HERTZ



1000
2000
3000
4000
AVG
RIGHT
25
40
70
75
53
LEFT
30
45
85
95
64

Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 90 percent in the left ear.  

Thus, in September 2008, the Veteran exhibited Level I hearing acuity in both ears according to Table VI.  In January 2013, the Veteran exhibited Level I hearing acuity in the right ear and Level III hearing acuity in the left ear according to Table VI.  The 2008 and 2013 findings are commensurate with the currently assigned noncompensable evaluation according to Table VII.  No exceptional pattern of hearing impairment was demonstrated at either examination.  The Board has considered the Veteran's sincere and credible lay belief that the severity of his hearing loss warrants a higher rating.  Competent medical evidence, however, is required to substantiate that the Veteran's hearing impairment warrants a higher schedular rating.  As noted above, the evaluation of hearing loss is reached by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  The medical evidence weighs against the assignment of a higher rating.  Accordingly, the currently assigned schedular rating is appropriate.  

The Veteran's bilateral hearing loss has not been shown to be manifested by greater than the criteria associated with the rating assigned under the designated diagnostic code during any portion of the appeal period.  Accordingly, staged ratings are not in order and the assigned rating is appropriate for the entire period of the Veteran's appeal.  Fenderson, 12 Vet. App. at 126.  

Consideration has also been given regarding whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Under Secretary for Benefits or to the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities."  38 C.F.R. § 3.321(b)(1) (2012); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record).  In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Thun, 22 Vet. App. at 115-16.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating.  Otherwise, the schedular evaluation is adequate, and referral is not required.  38 C.F.R. § 3.321(b)(1)(2012); Thun, 22 Vet. App. at 116.

At the September 2008 examination, in regard to the functional effects caused by the hearing loss, the Veteran reported that he experienced "difficulty hearing and understanding."  The September 2012 Audiology Case History report shows that in response to the question of what effects the Veteran's ear problems had on his occupational functioning and daily activities, the Veteran responded that he had trouble hearing his wife without repeating each conversation.  Also, the Veteran indicated that he enjoyed playing bridge which involved a lot of noise; he often had to ask his partner to repeat his bid.  At the January 2013 VA examination, in regard to the functional effects caused by the hearing loss, the Veteran reported that he constantly had to ask his wife "what did you say?"  The Veteran has basically indicated that he experiences difficulty hearing.  As such, he has not described any exceptional or unusual features associated with his hearing impairment.  The lay and medical evidence shows that the functional effects caused by the hearing disability do not impact the Veteran in any exceptional or unusual way.  Given all of the foregoing, the Board finds that the schedular evaluation in this case is not inadequate.  As the Board finds that the Veteran's disability picture is contemplated by the rating schedule, the inquiry ends and the Board need not consider whether the disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization.  Accordingly, referral for consideration of an extra-schedular rating is not warranted.

Finally, the Board also recognizes that the Court of Appeals for Veterans Claims has clarified that a claim for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities exists as part of a claim for an increase (whether in an original claim or as part of a claim for increased rating).  Rice v. Shinseki, 22 Vet. App. 447 (2009).  A TDIU claim is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability.  See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001).  The record reflects that the Veteran retired in 1990.  See September 2008 QTC Medical Services report (evaluation of other disabilities).  The Veteran has not contended that his bilateral hearing loss renders him unemployable and the other evidence of record does not otherwise suggest that this is the case.  For these reasons, the Board finds that a claim for TDIU has neither been raised by the Veteran nor by the record. 

In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  The preponderance of the evidence, however, is against the Veteran's claim and so that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

A compensable evaluation for service-connected bilateral hearing loss is denied.



____________________________________________
K. OSBORNE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs