Citation Nr: 1315504 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 09-06 532 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R.N. Poulson, Counsel INTRODUCTION The Veteran served on active duty from November 1967 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which, in pertinent part, granted service connection for left ear hearing loss and assigned a noncompensable evaluation, effective September 29, 2006, and denied service connection for right ear hearing loss. In February 2011, the Board granted service connection for right ear hearing loss and remanded the claim for a higher initial rating for left ear hearing loss. In March 2011, the Appeals Management Center (AMC) implemented the Board's February 2011 grant of service connection for right ear hearing loss and assigned a noncompensable evaluation, effective September 29, 2006. In a June 2011 supplemental statement of the case (SSOC), the AMC continued the noncompensable evaluation for left ear hearing loss. In April 2012, the Board recharacterized the issue as entitlement to a higher initial rating for bilateral hearing loss, rather than only left ear hearing loss, based on the Board's granting of service connection for right ear hearing loss by its February 2011 decision and pursuant to the regulation for rating hearing loss, which provides that an appropriate rating must be assigned based on bilateral hearing loss where bilateral hearing loss is service connected. See 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100 (2012). The Board remanded the appeal so that the agency of original jurisdiction (AOJ) could adjudicate the claim of entitlement to a higher initial evaluation for bilateral hearing loss in the first instance. In May 2012, the AMC increased the evaluation for bilateral hearing loss to 10 percent, effective September 29, 2006. FINDING OF FACT In November 2006, the Veteran's bilateral hearing loss was manifested by Level I right ear hearing acuity and Level IV left ear hearing acuity; in October 2008, bilateral hearing loss was manifested by Level II right ear hearing acuity and Level VI left ear hearing acuity; in April 2011, bilateral hearing loss was manifested by Level II right ear hearing acuity and Level VI left ear hearing acuity. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.85, DC 6100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where, as here with the claim for an initial increased rating for the service-connected bilateral hearing loss, service connection has been granted, that claim is substantiated. No additional VCAA notice is not required with respect to the downstream issue of the rating assigned to the now service-connected disability. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Moreover, the Board finds that VA has complied with its duty to assist the Veteran in the development of his claim. VA has obtained service treatment records (STRs) and VA treatment records. He has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. See 38 C.F.R. § 3.159 (c) (2). 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). The Veteran was afforded VA examinations in July 2007, October 2008 and April 2011 to evaluate the severity of his bilateral hearing loss. The July 2007 VA examiner did not provide the examination results because she found that they were not reliable. The Board finds that the October 2008 and April 2011 examinations were adequate because they address objective pure tone threshold values as well as the impact of the Veteran's bilateral hearing loss on his occupational and social functioning. See 38 C.F.R. § 3.326 (2011); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Furthermore, the Veteran has not asserted, and the evidence does not indicate, that his symptoms have materially increased in severity since the April 2011 evaluation. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Finally, the Board notes that this appeal was remanded in February 2011 and April 2012. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). The development requested in those remands, to provide a VA examination and adjudicate the issue of a higher initial rating for bilateral hearing loss, was completed. Accordingly, the Board finds that it may proceed to adjudication of this appeal. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). II. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. 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 rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.97. The Court has indicated that a distinction must be made between a veteran's dissatisfaction with original ratings and dissatisfaction with determinations on later filed claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Thus, the Board will evaluate the issues as claims for higher evaluations of the original awards. When an original rating is appealed, consideration must be given as to whether an increase or decrease is warranted at any time since the award of service connection, a practice known as "staged" ratings. Id. The severity of a hearing loss disability is determined by comparisons of audiometric test results with specific criteria. See 38 C.F.R. §§ 4.85, 4.86. 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 of 1,000, 2,000, 3,000 and 4,000 Hertz (cycles per second). Under the Schedule, such audiometric test results are translated into a numeric designation ranging from Level I to Level XI, in order to evaluate the degree of disability from bilateral service-connected defective hearing. A hearing impairment examination must be conducted by a state-licensed audiologist, include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test, and are to be conducted without the use of hearing aids. 38 C.F.R. § 4.85. In certain situations, the rating criteria provide for rating exceptional patterns of hearing impairment. If the pure tone threshold is greater than 55 decibels at each of four specified frequencies (1000 Hertz, 2000 Hertz, 3000 Hertz and 4000 Hertz), or if the pure tone threshold is 30 decibels or less at 1000 Hertz and simultaneously 70 decibels or more at 2000 Hertz, VA must 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 highest numeral for consideration. Each ear is evaluated separately. 38 C.F.R. § 4.86. VA treatment records consist of a November 2006 audiological evaluation. The Veteran reported difficulty understanding speech, especially in crowds. He wore a hearing aid in his left ear. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 45 40 45 LEFT 10 35 70 75 75 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 80 percent in the left ear. An October 2008 VA audiological consultation was conducted upon review of the claims file. The Veteran reported difficulty hearing in everyday situations at home and in general conversations. It was noted that he was retired. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 40 45 55 LEFT 15 50 70 80 75 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 72 percent in the left ear. Acoustic reflexes were absent at 2000 Hz in the left ear. An April 2011 VA audiological consultation was conducted upon review of the claims file. The Veteran reported difficulty hearing in his daily life and in general conversations. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 30 45 50 55 LEFT 15 50 70 80 75 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 78 percent in the left ear. Acoustic reflexes were absent bilaterally at 1000 Hz. The examiner concluded that the Veteran's hearing loss would not be a barrier to a wide range of employment settings. She noted that many individuals with the Veteran's degree of hearing loss, or worse, function well in many occupational settings. She noted that the Veteran's hearing loss might cause some problems in very noisy environments that require the use of non face-to-face communication equipment or in jobs that require a great deal of attention to high pitched sounds. The Board finds that the evidence of record does not support entitlement to a higher initial evaluation for bilateral hearing loss. First, there is no exceptional pattern of hearing impairment because the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz were not 55 decibels or more and the pure tone thresholds were not 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. See 38 C.F.R. § 4.86. Second, the 2006 audiogram demonstrates right and left ear hearing impairment that is represented by Roman numeral designations of Level I and Level IV, respectively. See 38 C.F.R. § 4.85(b)-(f), Table VI. Using Table VII, the numeral designations of Level I hearing acuity in the right ear and Level IV hearing acuity in the left ear translate to a noncompensable, or zero percent, evaluation. See 38 C.F.R. § 4.85, Table VII, DC 6100. Additionally, the 2008 VA examination demonstrates right and left ear hearing impairment that is represented by Roman numeral designations of Level II and Level VI, respectively. See 38 C.F.R. § 4.85(b)-(f), Table VI. Using Table VII, the numeral designations of Level II and Level VI hearing acuity in the right and left ears translate to a 10 percent evaluation. See 38 C.F.R. § 4.85, Table VII, DC 6100. Finally, the 2011 VA examination demonstrates right and left ear hearing impairment that is represented by Roman numeral designations of Level III and Level VI, respectively. See 38 C.F.R. § 4.85(b)-(f), Table VI. Using Table VII, the numeral designations of Level III and Level VI hearing acuity in the right and left ears translate to a 10 percent evaluation. See 38 C.F.R. § 4.85, Table VII, DC 6100. The assignment of a schedular disability evaluation for hearing impairment is a purely mechanical application of the rating criteria from which the Board cannot deviate. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Accordingly, an initial evaluation in excess of 10 percent for bilateral hearing loss is not warranted. In light of the holding in Hart, the Board has considered whether the Veteran is entitled to "staged" ratings for his service-connected bilateral hearing loss. Based upon the record, the Board must conclude that at no time during the appeal period has this disability been more disabling than as currently rated. Consideration has also been given regarding whether the schedular evaluation is inadequate, requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extra-schedular evaluation where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Id. at 116. In this regard, the schedular evaluation is not inadequate. A rating in excess of 10 percent is provided for certain manifestations of the service-connected bilateral hearing loss, as the criteria assess hearing loss at various pure tone threshold levels and speech recognition. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the bilateral hearing loss. The Veteran has provided testimony regarding the effects of his hearing loss on his work, family, and social life. The Board is sympathetic to these competent and credible statements, but notes that difficulty hearing is contemplated by the rating schedule. Accordingly, this issue need not be referred for consideration of an extraschedular rating. Moreover, the Board has considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) is present here. None of the VA examination reports show that the Veteran is unemployable solely due to his bilateral hearing loss. In fact, the April 2011 VA examiner noted that the Veteran could function well in a wide range of employment settings. Therefore, any inferred TDIU claim is inapplicable in this case. ORDER An initial evaluation in excess of 10 percent for bilateral hearing loss is denied. ____________________________________________ J.A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs