Citation Nr: 1316428 Decision Date: 05/20/13 Archive Date: 05/29/13 DOCKET NO. 10-14 685 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to a compensable disability rating for bilateral hearing loss prior to October 11, 2012. 2. Entitlement to a disability rating in excess of 10 percent for bilateral hearing loss beginning October 11, 2012. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran had active service in the Army from September 1959 to September 1962. The matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Denver, Colorado that granted service connection for bilateral hearing loss and assigned an initial noncompensable rating effective July 9, 2008. In a rating decision issued in January 2013, the RO increased the disability rating to 10 percent effective October 11, 2012. Because less than the maximum available benefit for a schedular rating was awarded, the claim remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). FINDING OF FACT 1. Prior to October 11, 2012, the numeric designation of hearing impairment based on puretone threshold average and speech discrimination did not result in a compensable rating. 2. Since October 11, 2012, the numeric designation of hearing impairment based on puretone threshold average and speech discrimination did not result in a rating in excess of 10 percent. CONCLUSIONS OF LAW 1. Prior to October 11, 2012, the criteria for a compensable rating for bilateral hearing loss disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, Tables VI, VIA and VII, Diagnostic Code 6100; 4.86 (2012). 2. Beginning October 11, 2012, the criteria for an initial evaluation in excess of 10 percent for bilateral hearing loss have not been met. § 1155 (West 2002); 38 C.F.R. §§ 4.85, Tables VI, VIA and VII, Diagnostic Code 6100; 4.86 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist the Veteran in substantiating his claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Here, the claim for a higher rating for bilateral hearing loss arose from a disagreement with the initial evaluation that was assigned following the grant of service connection. Courts have held that 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). VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Here, the Veteran's statements, his service treatment records, and post-service VA records have been associated with the claims folder. The Veteran was afforded VA examinations. The Board finds that the VA examinations obtained were adequate because the examiner conducted a clinical evaluation, reviewed the Veteran's medical history, and described the Veteran's bilateral hearing loss in sufficient detail so that the Board's evaluation is an informed determination. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet.App. 384 (1993). Analysis The Veteran contends that he is entitled to a higher rating for his bilateral hearing loss. 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. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. 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. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West 12 Vet. App. 119, 126 (1999). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. In cases for which the evaluation of hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report. Martinak v. Nicholson, 21 Vet. App. 447 (2007). VA must also consider whether an extra-schedular evaluation under 38 C.F.R. § 3.321(b) should be assigned in the case where the disability has an effect on the Veteran's occupational functioning and daily activities. See Martinak v. Nicholson, 21 Vet. App. 447, 454-55. Hearing loss ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with average hearing thresholds determined by puretone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 cycles per second. "Puretone threshold average" is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz divided by four. This average is used in all cases (including those in §4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85, DC 6100. The rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. 38 C.F.R. § 4.85. The horizontal rows 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 vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect. See 38 C.F.R. §§ 4.85, 4.86. The regulations also provide that in cases of exceptional hearing loss, i.e. when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, the Roman numeral designation will be determined for hearing impairment, separately, from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86. A Roman numeral designation will also be determined from either Table VI or Table VIa, whichever results in the higher numeral, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. That numeral will then be elevated to the next higher Roman numeral. The Veteran's service treatment records include a July 1962 separation examination which showed that he demonstrated a hearing acuity of 15/15 bilaterally in the whispered voice test. In a September 2008 statement the Veteran reported that people have to repeat themselves because he cannot hear. He reported that he cannot hear church sermons and was almost hit by a truck because he did not hear it coming. The Veteran also reported that because of his hearing he misses important appointments and meetings and often misunderstands directions. The Veteran reported that his ex-wife had to shout loudly even though she was nearby. Additionally, in his August 2009 Notice of Disagreement the Veteran reported that his hearing has caused aggravation for his family and friends. The Veteran also submitted several lay statements from family and friends that report how the Veteran often misunderstands conversations and misses important information because he cannot hear. The Veteran was afforded a Compensation and Pension (C&P) audiological examination in September 2008. The right ear had pure tone thresholds of 20, 50, 85, and 85 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. The left ear had pure tone thresholds of 20, 65, 70, and 70 decibels at these same frequencies. The average threshold for the right ear was 60 decibels and for the left ear was 56.25 decibels. The Veteran had 88 percent speech recognition for the right ear and 84 percent for the left ear. This translates to level III hearing for the right ear and level II for the left ear which, when applied to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable evaluation. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The examiner noted that the Veteran reported that his hearing loss did not significantly affect his ability to communicate effectively in employment situations and daily activities. The Veteran's Virtual VA records contain a May 2010 audiological consultation. The Veteran denied any changes in his hearing since his last evaluation. The Veteran reported trouble understanding speech and trouble following while playing the banjo/guitar. The right ear had pure tone thresholds of 25, 55, 90, and 85 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. The left ear had pure tone thresholds of 20, 60, 70, and 70 decibels at these same frequencies. The average threshold for the right ear was 63.75 decibels and for the left ear was 55 decibels. The Veteran had 96 percent speech recognition for the right ear and 88 percent for the left ear. This translates to level II hearing for the right ear and level II for the left ear which, when applied to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable evaluation. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Veteran's Virtual VA records also contain a VA outpatient record dated October 2012. The Veteran reported that he believed his hearing had deteriorated since his last exam. The right ear had pure tone thresholds of 25, 45, 85, and 90 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. The left ear had pure tone thresholds of 20, 70, 70, and 75 decibels at these same frequencies. The average threshold for the right ear was 61.25 decibels and for the left ear was 58.75 decibels. The Veteran had 92 percent speech recognition for the right and left ear. With the application of 38 C.F.R. § 4.86(b), the Veteran had a numeric designation of IV for his left ear under Table VIA and continued to have a numeric designation of II for the right ear. When applied to 38 C.F.R. § 4.85, Table VII, these results equate to a continuation of the noncompensable evaluation. Based on the cumulative audiological evaluations, prior to October 11, 2012, there is no evidence that the Veteran's bilateral hearing loss approximated the criteria for a compensable evaluation. The Board notes that the RO incorrectly assigned the Veteran a 10 percent initial rating effective October 11, 2012. However, the Board will not disturb the rating because the December 2012 VA examination shortly thereafter showed hearing loss acuity consistent with a 10 percent rating. The Veteran was afforded a second VA C&P audiological examination in December 2012. The right ear had pure tone thresholds of 25, 45, 85, and 85 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. The left ear had pure tone thresholds of 25, 70, 70, and 70 decibels at these same frequencies. The average threshold for the right ear was 60 decibels and for the left ear was 58.75 decibels. The Veteran had 86 percent speech recognition for the right ear and 84 percent for the left ear. With the application of 38 C.F.R. § 4.86(b), the Veteran had a numeric designation of IV for his left ear under Table VIA and had a numeric designation of III for the right ear. When applied to 38 C.F.R. § 4.85, Table VII, these results equate to a 10 percent rating. Although the examiner did not review the Veteran's claims file, the Board notes that the examiner performed an audiological evaluation and interviewed the Veteran to evaluate the effect of the Veteran's hearing loss disability on his occupational functioning and daily activities. The examiner noted that the Veteran stated that he had great difficulty understanding speech in most situations. Based on the audiology studies of record, for the period beginning October 11, 2012, the criteria for a rating in excess of 10 percent for bilateral hearing loss disability have not been met. The Board does not discount the difficulties that the Veteran has with his auditory acuity; however, entitlement to an evaluation in excess of 10 percent is not supported by the medical evidence at any time during this appeal. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). It is clear that the only possible evaluation for the Veteran's hearing loss is 10 percent. The Board has also considered entitlement to an increased evaluation on an extraschedular basis, but application of extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the Board finds that the rating criteria contemplate the Veteran's hearing loss for the entire duration of this appeal. The hearing loss disability is productive of decreased hearing acuity and this manifestation is contemplated in the respective applicable rating criteria. The rating criteria are therefore adequate to evaluate his disability. Furthermore, the Veteran has not averred that his hearing loss results in any occupational impairment not contemplated by the schedular rating, nor is there any objective evidence that his hearing loss presents an exceptional or unusual disability picture, with such factors as marked interference with employment or frequent periods of hospitalization, so as to render impractical the application of the regular schedular standards. In Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (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 defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. During the examination in September 2008 the Veteran reported that his hearing loss does not significantly affect his ability to communicate effectively in employment situations and daily activities. At the December 2012 examination, the Veteran stated that he had great difficulty understanding speech in most situations. Thus, these examination reports included information concerning how the Veteran's hearing loss affects his daily functioning. The Veteran has not reported to VA that there was any prejudice caused by a deficiency in his examinations and the evidence does not show that his difficulty with hearing has resulted in marked interference with employment. For these reasons, referral for consideration of an extraschedular is not warranted. Finally, it is noted that a total disability rating based on individual unemployability (TDIU) is a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Here, the Veteran has not reported that he is unemployed due to his hearing loss disability, nor does the evidence of record suggest the same. Inasmuch as there is no evidence of unemployability due to the disability at issue here, TDIU is not raised by the record. ORDER 1. Prior to October 11, 2012, a compensable disability rating, for bilateral hearing loss, is denied. 2. Beginning October 11, 2012, a disability rating in excess of 10 percent, for bilateral hearing loss, is denied. ____________________________________________ K. Osborne Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs