Citation Nr: 1316472 Decision Date: 05/20/13 Archive Date: 05/29/13 DOCKET NO. 08-39 959 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement an initial compensable rating for bilateral hearing loss. ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran served on active duty from April 1983 to May 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This case was remanded for additional development in April 2010 and May 2012. FINDING OF FACT Since the grant of service connection, the Veteran has had, at worst, Level II hearing in the right ear and Level I hearing in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. § 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.85, 4.86, Diagnostic Code (DC) 6100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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). Regarding VA's duty to notify, the claim for a higher rating for bilateral hearing loss arose from disagreement with the initial evaluation 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 the claim. This duty includes assisting the Veteran in the procurement of service treatment records, pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service records, VA and private medical records are in the claims file. Additional VA treatment records have been made available via Virtual VA. The Veteran has not indicated there are any additional records that VA should seek to obtain on his behalf. The Veteran was provided with audiologic examinations in August 2006, July 2010 and May 2012. The examination reports are adequate for evaluation purposes because the examiners conducted clinical evaluations, reviewed the Veteran's medical history, and described the hearing loss in sufficient detail so that the Board's evaluation is an informed determination. 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, 304 (2008). Further, 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. 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. Id. In this case, the examiners specifically addressed the effect of the Veteran's hearing loss on his daily activities and his employment. Thus, the Board finds that the examinations were adequate. The Veteran has not alleged, nor does the record show, that his service-connected hearing loss has worsened in severity since the most recent examination in May 2012. As such, a new examination is not required. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). All reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. Finally, this case was remanded for additional development in April 2010 and May 2012. There has been substantial compliance with the remand directives. Analysis The Veteran seeks an initial compensable rating for 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.; 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 ratings" is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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. When the evidence is determined to be competent, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. 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 affect on the Veteran's occupational function and daily activities. Id. 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, 4.87. 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. At a VA fee-based audiology examination in August 2006, the Veteran reported that his hearing loss caused difficulty understanding speech in the presence of noise. Puretone threshold levels, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT N/A 20 35 50 55 LEFT N/A 30 35 30 30 Puretone threshold levels averaged 40 decibels for the right ear and 31 decibels for his left ear. Speech discrimination testing was 88 percent in the right ear and 92 percent in the left ear. These results correspond to Level II hearing on the right and Level I hearing on the left pursuant to Table VI. The results further correspond to a noncompensable evaluation pursuant to Table VII. A pattern of exceptional hearing loss under 38 C.F.R. § 4.86 is not demonstrated. In the Veteran's Form 9, he reported that he often misses important words during conversations due to his hearing loss disability. Medical records dated from June 2007 to March 2012 from the Wilford Hall Medical Center show treatment for hearing loss and chronic tympanic membrane perforation and otorrhea in November 2008. These records reflect that the Veteran underwent an audiology examination in November 2008 where he reported difficulty hearing and understanding speech, and impairment of auditory discrimination. The examiner noted that the evaluation revealed mild to moderate sloping bilateral sensorineural hearing loss with asymmetry in the left ear worse at 500 Hertz (Hz), 1000 Hz, and 8000 Hz and worse in the right ear at 3000 Hz and 4000Hz. Word recognition was reportedly excellent in both ears. At a VA Compensation and Pension audiology examination in July 2010, the Veteran reported that his hearing loss causes him difficulty with hearing. There were no significant effects on the Veteran's occupation or his activities of daily living. Puretone threshold levels, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT N/A 25 35 35 45 LEFT N/A 20 35 55 50 Puretone threshold levels averaged 35 decibels for the right ear and 40 decibels for his left ear. Speech discrimination testing was 98 percent in the right ear and 100 percent in the left ear. Mild to moderate hearing loss was noted. Nonetheless, these results correspond to Level I hearing on the right and Level I hearing on the left pursuant to Table VI. These results further correspond to a noncompensable evaluation pursuant to Table VII. A pattern of exceptional hearing loss under 38 C.F.R. § 4.86 is not demonstrated. The Virtual VA claims folder includes a September 2010 primary care treatment record showing the Veteran reported difficulty hearing when there is background noise and requested hearing aids. There were no reports of audiology examinations containing measurements of puretone threshold levels. At a VA audiology examination conducted in May 2012, the Veteran reported that his hearing loss causes him difficulty hearing soft-spoken people and he has to ask them to repeat themselves often. Puretone threshold levels, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT N/A 15 30 55 50 LEFT N/A 20 30 40 45 Puretone threshold levels averaged 38 decibels for the right ear and 34 decibels for his left ear. Speech discrimination testing was 98 percent in both ears. These results correspond to Level I hearing on the right and Level I hearing on the left pursuant to Table VI. These results further correspond to a noncompensable evaluation pursuant to Table VII. A pattern of exceptional hearing loss under 38 C.F.R. § 4.86 is not demonstrated. The examiner indicated that the Veteran has essentially normal hearing through most of the speech frequencies. He has a moderately high frequency sensorineural hearing loss. The examiner also indicated that the Veteran barely met the candidacy criteria for the hearing aids he has now. The examiner opined that given the Veteran's degree of hearing loss, he would expect him to have some difficulty understanding conversation in difficulty listening environments such as with background noise. Otherwise, there was no significant impairment in social or occupational functioning. The August 2006, July 2010, and May 2012 VA examination reports contain a detailed description of the Veteran's subjective complaints, as indicated above. The August 2006 examiner indicated that the functional effect of Veteran's hearing loss is that the Veteran's hearing loss caused difficulty understanding speech in the presence of noise. The July 2010 and May 2012 examiners noted that there was no significant impairment in social or occupational functioning due to the Veteran's hearing loss. Thus, the Board finds that the examinations were adequate. See, Martinak v. Nicholson, 21 Vet. App. 447 (2007). Based on the results of the audiological evaluations discussed above, and in the absence of any additional medical evidence showing a more severe hearing disability, the Veteran's hearing loss has not approximated the criteria for a compensable evaluation at any time during this appeal. Although the Board does not discount the difficulties the Veteran has with his auditory acuity, it has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Thus, the assignment of a compensable rating on a schedular basis is not warranted. A review of the record also fails to show that a referral for extraschedular consideration is warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. 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 extraschedular 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 extraschedular 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). In this case, the Board finds that the rating criteria contemplate the Veteran's hearing loss disability for entire duration of this appeal. The Veteran's hearing loss disability is productive of decreased hearing acuity and this manifestation is contemplated in the respective applicable rating criteria. In Martinak, the Court noted that unlike the rating schedule for hearing loss, the extraschedular provisions do not rely exclusively on objective test results to determine whether referral for an extraschedular rating was warranted. The Court held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Id. at 455. As discussed above, the August 2006, July 2010, and May 2012 VA examination reports contain a detailed description of the Veteran's subjective complaints. The May 2006 examiner indicated that the functional effect of Veteran's hearing loss is that the Veteran's hearing loss causes difficulty understanding speech in the presence of noise. The July 2010 and May 2012 examiners noted that there is no significant impairment in social or occupational functioning due to the Veteran's hearing loss. While the Board has considered this evidence in light of Martinak and the provisions of 38 C.F.R. § 3.321(b)(1), the Board does not find that the Veteran has described functional effects that are "exceptional" or not otherwise contemplated by the assigned evaluation. Rather, his description of difficulties with hearing is consistent with the degree of disability addressed by such evaluation. Referral for an extraschedular rating is not warranted. The Board has also contemplated whether consideration of a total disability rating based on individual unemployability (TDIU) is warranted. The Court has held that entitlement to a TDIU is an element of all appeals for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. As there is no evidence of unemployability due to the Veteran's hearing loss disability, the question of entitlement to a TDIU is not raised. ORDER Entitlement to an initial compensable evaluation for hearing loss is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs