Citation Nr: 1315494	
Decision Date: 05/10/13    Archive Date: 05/15/13

DOCKET NO.  12-15 501	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUE

Entitlement to a compensable rating for bilateral hearing loss disability.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

E. I. Velez, Counsel


INTRODUCTION

The Veteran served on active duty from May 1952 to May 1954.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.

The Veteran testified in April 2013 at a Travel Board hearing in front of the undersigned.  A transcript of the hearing is of record.  

The issue of entitlement to an increased disability rating for tinnitus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate 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).


FINDINGS OF FACT

1.  Prior to March 14, 2013, the Veteran's hearing loss has been manifested by no worse than Level I hearing loss in the right ear and Level IV hearing loss in the left ear.

2.  Since March 14, 2013, the Veteran's hearing loss shows an exceptional hearing loss pattern in the left ear and has been manifested by no worse than Level III hearing loss in the right ear and Level VI hearing loss in the left ear.





CONCLUSIONS OF LAW

1.  Prior to March 14, 2013, the criteria for a compensable evaluation for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.951, 4.85, Diagnostic Code 6100, and 4.86 (2012).

2.  Since March 14, 2013, the criteria for a 10 percent disability rating for bilateral hearing loss have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.951, 4.85, Diagnostic Code 6100, and 4.86 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In correspondence dated in December 2011, prior to the March 2012 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. 
§ 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012).  Specifically, the RO notified the Veteran of information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide.  The December 2011 letter informed the Veteran that in order to establish a higher rating, the evidence would need to show that his hearing loss disability had increased in severity.  He was informed of the type of evidence that could be submitted to support his claim.  The letter also notified the Veteran of the process by which initial disability ratings and effective dates are established as set forth in Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012).  All identified and available treatment records have been secured.  The veteran was afforded a VA examination in January 2012.  The VA examination report of record reflect that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate audiological evaluation of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. 

The Board recognizes that in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the United States Court of Appeals for Veterans Claims (Court) noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities.  See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2012).  The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow deficient, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. In this case, the Board observes that the January 2012 VA examiner addressed the functional effects of the Veteran's hearing loss as will be discussed in detail below.  Moreover, the undersigned discussed functional impairments during the April 2013 hearing.  Thus, as contemplated by Martinak and directed by 38 C.F.R. § 4.10, the VA examiner the functional effects of the Veteran's hearing problems are of record. 

The Board concludes that the examination reports of record are adequate for purposes of rendering a decision in the instant appeal.  See 38 CF.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c) (4) (2012); Barr, 21 Vet. App. at 312. 

The Board also observes that the Veteran was also was afforded a hearing before the undersigned Veterans Law Judge (VLJ) during which he presented oral argument in support of his service connection claim.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, the VLJ fully explained the issue on appeal during the hearing and elicited testimony concerning the severity of the Veteran's hearing loss and its functional impact.  Significantly, neither the appellant nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) , nor has he identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) .

The Board additionally observes that all appropriate due process concerns have been satisfied.  See 38 C.F.R. § 3.103 (2012). Therefore, the duties to notify and assist have been met. 

Legal criteria and Analysis

The Veteran essentially contends that his bilateral hearing loss disability is compensable. 

Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition.  Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7.

While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. 

Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second.  The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test (Maryland CNC) together with the results of a puretone audiometry test.  The vertical lines in Table VI (in 38 C.F.R. § 4.85 ) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  The horizontal columns in Table VI represent nine categories of decibel (dB) loss based on the pure tone audiometry test.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone dB loss. 

The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85 ) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity.  For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent.  38 C.F.R. 
§ 4.85. 

The provisions of 38 C.F.R. § 4.86(a) provide that 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.  The provisions of 38 C.F.R. § 4.86(b) provide that when the puretone threshold is 30 dB or less at 1,000 hertz, and 70 dB 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 is the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately. 

The relevant medical evidence of record includes multiple VA examinations and a private audiology report. 

The Veteran was afforded a VA examination in January 2012.  At the time, average puretone thresholds were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
40
40
50
60
LEFT
45
65
70
75

The pure tone threshold average was 48 decibels in the right ear and 64 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 82 percent in the left ear.  The hearing impairment levels correspond to Level I in the right ear and Level IV in the left ear under Table VI.  Intersecting Levels I and I under Table VII shows a non-compensable rating.  The Board has also considered the provisions of 38 C.F.R. § 4.86 governing exceptional patterns of hearing impairment.  However, since the examination report fails to demonstrate that each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) in either ear is 55 decibels or more, or that pure tone threshold is 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz in either ear, evaluation for exceptional patterns of hearing impairment is not warranted.  See 38 C.F.R. § 4.86 (a), (b). 


The Veteran submitted a March 2013 private audiological examination report, the report of which indicated the following pure tone thresholds, in decibels:



HERTZ



1000
2000
3000
4000
RIGHT
50
75
80
85
LEFT
60
70
75
75

The pure tone threshold average was 73 decibels in the right ear and 70 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 92 percent in the left ear.  

The hearing impairment levels noted at the March 2013 private audiological examination correspond to Level III in the right ear and Level II in the left ear under Table VI.  Intersecting Levels VI and VI under Table VII shows a noncompensable rating.  The Board has also considered the provisions of 38 C.F.R. § 4.86 governing exceptional patterns of hearing impairment and finds that the provisions are applicable to the left ear as puretone thresholds in the left ear are all 55 decibels or higher.  Table VIA applicable under 38 C.F.R. § 4.86 provides a Level of VI in the left ear.  Intersecting Level III for the right ear and Level VI for the left ear on table VIA yields a disability rating of 10 percent.  

Considering the evidence above, the Bord finds that a staged rating is warranted.  See Hart, supra.  Prior to the March 14, 2013 private audio examination, the Veteran's hearing loss was noncompensable as established by the objective findings of the January 2012 VA examination.  However, the audiometric findings of the March 14, 2013 private examination provide for a 10 percent disability rating.  These audiometric findings do not, however, warrant a rating in excess of 20 percent under the rating criteria.

It is important to note that the results of the VA audiometric testing do not signify the absence of a significant disability associated with the Veteran's hearing loss disability.  However, the degree to which this disability affects the average impairment of earnings, according to the Rating Schedule, results in a noncompensable rating prior to March 14, 2013 and a 10 percent disability rating thereafter.  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.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

Accordingly, the Board finds that a noncompensable rating is warranted prior to March 14, 2013, the date of the private audiological examination; and a 10 percent disability rating is warranted from March 14, 2013.

Extraschedular Considerations

The Board has also considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis.  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

According to the regulation, an extraschedular disability rating is warranted based upon a finding that 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 would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1).  An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards.  See Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran'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 Veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected hearing loss disability is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's hearing loss disability with the established criteria shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology.  Specifically, the Veteran reports that his hearing loss disability interferes with word understanding in any type of competing noise environment.  He indicated having difficulty hearing spoken words while watching television or speaking on the phone.  He further noted that he could not hear sirens form ambulances while driving and feels it is dangerous to drive.  

The Board notes that the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability.  In support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86.  In this regard, the rating criteria for hearing loss were last revised, effective June 10, 1999.  See 64 Fed. Reg. 25206 (May 11, 1999).  In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids.  VHA had found through clinical studies of veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment.  The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA.  The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting.  59 Fed. Reg. 17295 (April 12, 1994).  Accordingly, the Board finds that functional impairment described by the Veteran is a disability picture that is considered in the current schedular rating criteria.

Therefore, the Veteran's struggle to comprehend verbal conversations and hear sirens is a factor contemplated in the regulations and rating criteria as defined.  Accordingly, the Board determines that the Veteran's complaints of hearing difficulty have been considered under the numerical criteria set forth in the rating schedule. 

In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology.  The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.

Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009).  In Rice, the Court held that a claim for a total rating based on unemployability due to service- connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating.  In this case, the Veteran has not argued, and the record does not otherwise reflect, that his hearing loss disability renders him totally unemployable.  Accordingly, the Board concludes that a claim for TDIU has not been raised.

(CONTINUED ON NEXT PAGE)

ORDER

Entitlement to a compensable disability rating for bilateral hearing loss, prior to March 14, 2013, is denied.

Entitlement to a disability rating of 10 percent for bilateral hearing loss, from March 14, 2013, is granted, subject to the laws and regulations governing the award of monetary benefits.



____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs