Citation Nr: 1315091 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 09-25 150 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss. ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1971 to October 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Board remanded the Veteran's claim in April 2012 and November 2012 for additional development. It has been returned to the Board for further appellate consideration. FINDING OF FACT Throughout the pendency of the appeal, the Veteran's bilateral hearing loss was manifested by no worse than Level I hearing acuity in the right ear and Level II hearing acuity in the left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.21, 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION After review of the claims file, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions in this case with respect to the issue on appeal. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Proper notice from VA must inform the veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This 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). The Veteran's claim of entitlement to an initial compensable rating for bilateral hearing loss arises from his disagreement with the initial evaluation assigned following the grant of service connection. Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran's service treatment records, VA treatment records, and identified private treatment records have been obtained. In April 2012, the Board remanded the Veteran's claim for additional development. Specifically, the Board instructed the RO/Appeals Management Center (AMC) to obtain the March 2009 audiological evaluation results referenced in March 2009 VA treatment records and then forward the Veteran's claims file to the VA audiologist who conducted the March 2009 audiological evaluation for clarification of the results. Additionally, the April 2012 Board remand included a provision for an additional VA examination to determine the current level of severity of the Veteran's bilateral hearing loss. The record reflects that the Veteran underwent VA audiological examination in May 2012. In this respect, the Board finds the May 2012 examination adequate for rating purposes because it was performed by an examiner with appropriate expertise, was based on an examination of the Veteran's current level of hearing loss in accordance with VA regulations, and provided sufficient information to decide the issue on appeal. 38 C.F.R. § 3.159(c)(4); Barr v Nicholson, 21 Vet. App. 303 (2007). Additionally, the Board notes the VA examiner discussed the March 2009 audiological evaluation results. However, because the AMC did not obtain the March 2009 audiological evaluation results for review, the Board remanded the Veteran's claim in November 2012. A review of the evidence reflects that the March 2009 audiological evaluation results have been associated with the Veteran's claims file. As such, the Board finds the AMC substantially complied with the April 2012 and November 2012 remand directives. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). There is no indication in the record that any additional evidence relevant to the issue decided herein is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). The Board has thoroughly reviewed all of the evidence in the Veteran's claims file. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matter on appeal. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability, and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. In all claims for increase, VA has a duty to consider the possibility of assigning staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluations of 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 as measured by puretone audiometric tests. To evaluate the degree of disability resulting from hearing loss, the Rating Schedule establishes 11 levels of impaired efficiency, numerically designated from Level I to Level XI. Level I represents essentially normal hearing acuity for VA compensation purposes, with hearing loss increasing with each level to the profound deafness represented by Level XI. 38 C.F.R. § 4.85, Tables VI, VII (2012). Hearing tests will be conducted without hearing aids, and the results of the above-described testing are charted on Table VI and Table VII. 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 audiometry test. Exceptional patterns of hearing impairment are addressed in 38 C.F.R. § 4.86. When the puretone 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 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. 38 C.F.R. § 4.86(a). When the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 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 next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). The Veteran's service-connected bilateral hearing loss has been assigned a non-compensable rating pursuant to Diagnostic Code 6100. The Veteran contends that his bilateral hearing loss is more disabling than currently evaluated. Specifically, the Veteran asserts he has difficulty with conversation. Considering the pertinent evidence in light of the governing legal authority, the Board finds that an initial compensable rating for bilateral hearing loss is not warranted. The competent clinical evidence of record consists of audiological examinations performed in July 2008, May 2011, and May 2012. The July 2008 report revealed that the relevant puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 20 30 40 LEFT 40 80 65 65 The VA examiner found the Veteran had mild high frequency sensorineural hearing loss in the right ear and mild to severe sensorineural hearing loss in the left ear. On the basis of the numbers shown above, the Veteran's puretone threshold average for the right ear was recorded as 27.5 decibels. His puretone threshold average for the left ear was recorded as 62.5 decibels. His speech recognition ability was 96 percent for the right ear and 94 percent for the left ear. Applying 38 C.F.R. § 4.85, Table VI to the July 2008 audiometric examination findings, the Veteran's right ear hearing loss is a Level I impairment based on a puretone threshold average of 27.5 decibels and a 96 percent speech recognition score. The Veteran's left ear hearing loss is a Level II impairment based on a puretone threshold average of 62.5 decibels and a 94 percent speech recognition score. As such, the Veteran's left ear is considered the poorer ear for rating purposes. Applying the criteria from Table VI to Table VII, a noncompensable rating is derived. As described above, the rating criteria also provides for rating exceptional patterns of hearing impairment under the provisions of 38 C.F.R. § 4.86. Here, puretone thresholds at each of the four specified frequencies were not shown to be 55 decibels or more, and therefore, evaluation under 38 C.F.R. § 4.86(a) is not warranted. Furthermore, puretone thresholds were not shown to be 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. As a result, the results did not reveal an exceptional pattern of hearing loss in either ear, and the Veteran is not entitled to additional consideration under 38 C.F.R. § 4.86(b). In May 2011, the relevant puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 15 40 45 LEFT 40 75 70 65 The VA examiner diagnosed mild sensorineural hearing loss in the right ear and moderately severe sensorineural hearing loss in the left ear. The Veteran reported that his daily activities were affected by difficulty with communication and stated his usual occupation was not affected by his service-connected disability. This examination did address the effects of the Veteran's hearing loss on his activities of daily living. See Martinak v. Nicholson, 21 Vet. App. 447 (2007) On the basis of the numbers shown above, the Veteran's puretone threshold average for the right ear was 28.75 decibels. His puretone threshold average for the left ear was 62.5 decibels. His speech recognition ability was 100 percent for the right ear and 96 percent for the left ear using the Maryland CNC speech recognition test. Applying 38 C.F.R. § 4.85, Table VI to the May 2011 audiometric examination findings, the Veteran's right ear hearing loss is a Level I impairment based on a puretone threshold average of 28.75 decibels and a 100 percent speech recognition score. The Veteran's left ear hearing loss is a Level II impairment based on a puretone threshold average of 62.5 decibels and a 96 percent speech recognition score. As such, the Veteran's left ear is considered the poorer ear for rating purposes. Applying the criteria from Table VI to Table VII, a noncompensable rating is derived. Here, the Veteran is not entitled to additional consideration for exceptional patterns of hearing impairment based upon the results of the May 2011 audiological examination. Puretone thresholds at each of the four specified frequencies were not shown to be 55 decibels or more, and as such, evaluation under 38 C.F.R. § 4.86(a) is not warranted. Further, puretone thresholds were not shown to be 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. Therefore, the Veteran is not entitled to additional consideration under 38 C.F.R. § 4.86(b). In May 2012, the relevant puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 10 20 40 45 LEFT 50 75 70 65 The VA examiner diagnosed asymmetric, combined, sensorineural hearing loss, characterized by mild to moderate, high frequency hearing loss in the right ear and moderate to severe hearing loss in the left ear. The Veteran reported that his daily activities were affected by hearing speech in most situations but denied any effect on his occupational functioning. This examination also addressed the effects of the Veteran's hearing loss on his activities of daily living. See Martinak v. Nicholson, 21 Vet. App. 447 (2007) On the basis of the numbers shown above, the Veteran's puretone threshold average for the right ear was 28.75 decibels. His puretone threshold average for the left ear was 65 decibels. His speech recognition ability was 100 percent for the right ear and 94 percent for the left ear using the Maryland CNC speech recognition test. Applying 38 C.F.R. § 4.85, Table VI to the May 2012 audiometric examination findings, the Veteran's right ear hearing loss is a Level I impairment based on a puretone threshold average of 28.75 decibels and a 100 percent speech recognition score. The Veteran's left ear hearing loss is a Level II impairment based on a puretone threshold average of 65 decibels and a 94 percent speech recognition score. As such, the Veteran's left ear is considered the poorer ear for rating purposes. Applying the criteria from Table VI to Table VII, a noncompensable rating is derived. Based upon the results of the May 2012 audiological examination, the Veteran is not entitled to additional consideration for exceptional patterns of hearing impairment. Puretone thresholds at each of the four specified frequencies were not shown to be 55 decibels or more, and as such, evaluation under 38 C.F.R. § 4.86(a) is not warranted. Further, puretone thresholds were not shown to be 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. Therefore, the Veteran is not entitled to additional consideration under 38 C.F.R. § 4.86(b). The evidence of record also includes VA hearing aid evaluations (HAE) performed in March 2009. Pursuant to the Board's remands, the May 2012 VA examiner clarified the information provided in the HAE. The May 2012 examiner reported that the March 2009 HAE were performed by rehabilitation audiologists for the purpose of determining hearing aid candidacy and prescription, not for the purpose of determining VA disability ratings. Although the audiologist who performed the HAE was available, the May 2012 examiner explained that the audiologist was not a compensation and pension audiologist and therefore did not submit compensation and pension medical opinions. With respect to the information provided in the March 2009 HAE, the May 2012 examiner opined that all speech discrimination scores were obtained using the Maryland CNC speech recognition test. Additionally, the left ear was tested at various levels to obtain the best speech discrimination at a comfortably loud level and levels that represented that of typical speech so that the audiologist could predict the benefit of aided versus unaided speech discrimination. The VA examiner also clarified that 80 percent and 76 percent speech discrimination scores were considered "good" and a 90 percent speech discrimination score was considered excellent for hearing aid evaluation purposes. Finally, the May 2012 examiner stated that HAE test results were used to predict how hearing aids were likely to benefit a Veteran's communication, to determine which hearing aids should be ordered, and to determine how those hearing aids should be programmed. As a result, the May 2012 examiner opined that the HAE results should not be considered adequate for VA disability rating purposes. In light of this evidence, the Board finds the March 2009 audiological examination results inadequate for purposes of determining the severity of the Veteran's service-connected bilateral hearing loss. 38 C.F.R. § 3.159(c)(4); Barr v Nicholson, 21 Vet. App. 303 (2007). In addition, the Veteran submitted a June 2008 private audiological examination in support of his claim. The relevant puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 20 35 40 LEFT 35 75 70 75 The private physician diagnosed markedly asymmetric sensorineural hearing loss with significantly reduced speech discrimination scores. Speech reception thresholds were 10 decibels in the right ear and 30 decibels in the left ear. Speech discrimination scores were 100 percent in the right ear and 80 percent in the left ear. Here, the Board notes that the private otolaryngologist did not indicate that such speech discrimination testing was performed using the Maryland CNC speech recognition test, as is required for examination for hearing impairment for VA rating purposes. See 38 C.F.R. § 4.85(a). Therefore, the Board finds the June 2008 private audiological report inadequate for purposes of establishing entitlement to an initial compensable rating for bilateral hearing loss consistent with VA regulations. Additionally, the Board notes that the June 2008 private audiological examination appears to have been conducted for purposes of determining hearing aid candidacy and prescription, similar to the March 2009 VA HAE, which further supports the inadequacy of the examination findings for purposes of determining VA disability ratings. Moreover, even if the Board were to consider the June 2008 results, such evidence does not reveal hearing impairment for VA purposes more severe than those demonstrated in the adequate VA examinations of record. Specifically, applying 38 C.F.R. § 4.85, Table VI, the Veteran's right ear hearing loss is a Level I impairment based on a puretone threshold average of 27.5 decibels and a 100 percent speech recognition score. The Board notes that these results indicate the Veteran's left ear hearing loss is a Level IV impairment based on a puretone threshold average of 62.5 decibels and an 80 percent speech recognition score, which is higher than the other examination results of record. Nonetheless, application of the criteria from Table VI to Table VII results in a noncompensable rating for VA purposes. Therefore, the Board finds the evidence of record does not include any audiological examination results demonstrating a higher level of bilateral hearing loss during the pendency of the appeal. The Board recognizes the Veteran's assertions regarding the impact of his bilateral hearing loss on his daily life. However, the assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designation assigned after audiometric results are obtained. Thus, the Board must base its determination on the audiological evaluation results of record and is bound by law to apply VA's Rating Schedule based on such results. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1; see also Lendenmann v. Principi, 3 Vet. App. 345 (1992). The examinations did, however, address the effects of the Veteran's hearing loss on his activities of daily living as required by Martinak v. Nicholson, 21 Vet. App. 447 (2007). Therefore, applying the competent audiological test results most favorable to the Veteran to the regulatory criteria, the Board is compelled to conclude that an initial compensable rating is not warranted for bilateral hearing loss at any time during the pendency of the appeal. The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b). In this regard, the Board again notes the Veteran's assertions that his bilateral hearing loss affects his ability to communicate and hear conversation. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This involves a comparison between the level of severity and symptomatology of the veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the record does not reflect that the average industrial impairment from the Veteran's hearing loss disability is in excess of that contemplated by the assigned rating. As noted above, results from the adequate audiological evaluations of record reveal, at worse, Level I hearing acuity in the right ear and Level II hearing acuity in the left ear under Table VI, and the Veteran has not submitted any audiological evidence indicating that his hearing loss disability has been worse at any point during the pendency of the appeal. While the Board recognizes the Veteran's assertions that he experiences difficulty communicating and hearing conversation, such manifestations are adequately contemplated by the schedular criteria for a noncompensable rating under DC 6100, which explicitly contemplates Level I and Level II hearing acuity. These manifestations of the Veteran's bilateral hearing loss and all other manifestations noted in the record are not exceptional in terms of the disability level and symptomatology of a person with Level I hearing acuity in the right ear and Level II hearing in the left ear and have not been shown to be productive of more than the average impairment in earning capacity commensurate with Level I hearing acuity and Level II hearing acuity. In addition, the record reflects that the Veteran has not required frequent hospitalizations, and there is no indication of marked interference with employment due to his bilateral hearing loss. In sum, the Board has determined that there are no unusual or exceptional factors in this case warranting the referral of the claim for extraschedular consideration. Thus, the Board finds the criteria for an initial compensable rating for bilateral hearing loss have not been met at any time during the pendency of the appeal. Accordingly, there is no basis for a staged rating, and a higher rating must be denied. In reaching this conclusion, the Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against an initial compensable rating for bilateral hearing loss, that doctrine is not applicable. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs