Citation Nr: 1316747 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 11-15 291 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to an initial evaluation in excess of 40 percent for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from September 1957 to September 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2010 and March 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in April 2013; a transcript of that hearing is associated with the claims file. When he appeared for the hearing, the Veteran withdrew from appeal a claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities of hearing loss and tinnitus. Consequently, the Board will only address the hearing loss rating claim. (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).) FINDING OF FACT The evidence of record does not demonstrate audiological results or any other functional impacts of the Veteran's hearing loss that would demonstrate entitlement to an evaluation in excess of the assigned 40 percent evaluation. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 40 percent for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant 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 claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's claim for a higher rating arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required. Dingess, supra. Therefore, no further notice is needed under VCAA. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at an April 2013 hearing before the undersigned. The Board has reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim herein decided. Additionally, as explained below, VA has made sufficient attempts at obtaining medical evidence to assist the Veteran. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2012); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2012); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2012); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2012). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the claimant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). 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 1000, 2000, 3000, and 4000 Hertz (Hz). To evaluate the degree of disability from bilateral service-connected defective hearing, the Rating Schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012). The evaluation of hearing impairment applies a rather structured formula that is a mechanical application of the rating schedule to numeric designations after audiology evaluations are obtained. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under 38 C.F.R. § 4.86, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels or more, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86(a) (2012). Further, when the average puretone threshold is 30 decibels at 1000 Hz, and 70 decibels or more at 2000 Hz, the rating specialist will determine the Level 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 Level. 38 C.F.R. § 4.86(b) (2012). On appeal, the Veteran has averred that he is entitled to a higher evaluation because of the injuries he suffered in military service; he has specifically indicated that his hearing loss should be evaluated as 100 percent disabling because of the "hell" his military service and the subsequent hearing problem has put him through. In his statements of record and particularly in his April 2013 hearing testimony, the Veteran indicated that he was not able to hear clearly with his VA-issued hearing aids, and that he had to constantly tell people to face him and to speak loudly and slowly, so that he can hear them. The Veteran filed his claim for service connection in September 2008. In January 2009 he underwent a VA audiological examination . The Veteran reported that his hearing was "terrible" and that words were not clear; he complained that he could not hear. The Veteran underwent audiometric testing, which was noted as producing inconsistent responses. The examiner noted that the Veteran was able to communicate face-to-face without hearing aids in a normal conversational tone and that his behavior responses between puretone testing and speech stimuli testing were not in agreement. The examiner additionally noted that repeated attempts were made to obtain organic thresholds at that time. The Veteran sought treatment with VA in August 2009, at which time the Veteran expressed frustration with his hearing and stated that he wanted his hearing back like it was when he was 18; he was also unsure if he wanted hearing aids because they would never return his hearing to perfect. The Veteran underwent audiometric testing which revealed the following results: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Speech Discrimination RIGHT 40 45 75 95 105 80 - LEFT 40 55 90 85 100 82.5 - The VA clinician noted that the thresholds obtained at that time were likely elevated, but that the Veteran was in need of amplification and the results would be used for hearing aid ordering and fitting. Word recognition testing was not performed at that time, though the audiological examination was found to have demonstrated a mild to profound sensorineural hearing loss bilaterally. The Veteran was ordered new hearing aids and was informed that no hearing aid would be able to return his hearing to perfect. It was noted that the Veteran may need counseling in the future with respect to his expectations regarding treatment. He underwent another VA examination for his hearing loss in January 2010, during which time it was noted that the Veteran had decibel loss averages of 81 Hz in both ears; Maryland CNC scores noted an 88 percent speech discrimination score in the right ear and 76 percent in the left ear. However, the examiner noted that those scores were inconsistent, unreliable and should not be used for rating purposes; it was noted that the Veteran needed to be re-tested. The Veteran sought evaluation for his hearing aids in July 2010, at which time it was shown that he was using his old hearing aids and not the ones issued to him in 2009, which did not "feel comfortable." The hearing aids he brought with him were sent to the manufacturer for repair and reprogramming; those aids were sent back to the Veteran from repair and reprogramming later that month. The Veteran was re-tested by VA in August 2011, and again the examiner noted that the Veteran's test results were inconsistent, unreliable and should not be used for rating purposes. The examiner noted that the Veteran should be re-tested at a different facility. The Veteran underwent another VA audiological examination in January 2012. During that examination puretone averages were not obtained and speech discrimination scores obtained showed 24 percent and 28 percent in the right and left ears, respectively. Again, that examiner noted that the testing results were inconsistent, unreliable and should not be used for rating purposes. This examiner noted that the Veteran's responses to tones were not consistent or reliable and that he would repeat back only part of the words during the Speech Reception Test (SRT) but was consistent to 40dB in the right ear and 35dB in the left ear. He noted that he felt the SRT's were reliable, but that the tones do not match up to speech tests and so he instructed that raters not use that test to rate the Veteran. It was noted that he needed to be re-tested. Finally, the Veteran was given a VA audiological examination in February 2012. During that examination, the Veteran reported that he could not hear anything at any time and that his hearing aids did not work at all; he also stated that everyone became angry with him for being unable to hear. The examiner noted that the Veteran had now been evaluated six times and that all of the reports reflected invalid thresholds or inconsistent responses or discrepancy among the data. She noted that it was the same for the Veteran's results obtained at that time. She noted that on objective testing he passed at the 1000, 2000 and 3000 Hz levels and only failed at the 4000 Hz level for the right ear; she could not get a seal for the left ear, and it appears that test results were not obtained at that time. She noted that his volunteered speech reception thresholds were much better than his volunteered responses to puretones bilaterally. It was not possible, given the data obtained during that examination, to say there was any increase in his hearing loss bilaterally. She additionally noted that she, like all of the other prior audiologists, could not clearly define his auditory function except to state that it was much better than his volunteered responses. She additionally noted that testing for auditory brain stem responses might be the only other objective measurement that could be done. In light of that recommendation, the RO obtained an addendum from the February 2012 examiner's supervisor in April 2012, which noted that he had reviewed the claims file, including the five VA examinations. He noted that none of the examiners was able to obtain valid data due to inconsistent responses. He noted the recommendation, but stated that such testing would only give "us an idea of what actual thresholds may be . . . [and could not] be used as a substitute for air and bone threshold testing. If accurate air and bone testing cannot be completed, any rating based on other measures (OAE responses, ABR threshold responses) would be based partially on speculation. Because VA had attempted to get accurate data at the past 5 exams, but had been unable to do so, he recommend suspending any further testing for the time being. It was felt that the Veteran had been given every opportunity to supply VA with accurate data. On the basis of the evidence of record, the Board finds that an evaluation in excess of 40 percent for bilateral hearing loss is not warranted. The Board notes that the Veteran's hearing test results from the August 2009 audiometric testing demonstrates a Level VII hearing acuity bilaterally under Table VIa for the puretone threshold averages at that time. Such results allow for a 40 percent under Table VII. See 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. The Board notes that appears to be results on which the Veteran's current 40 percent evaluation was based. However, as noted several times, audiometric test results obtained over the course of the claim were found to be inconsistent because of the Veteran's unreliability and very likely did not reflect the Veteran's true hearing acuity levels. Moreover, while it appears that the January 2012 examiner felt that the SRT results were reliable, the Board notes that the SRT scores cannot be used under the prescribed formula in the Rating Schedule. The Board further acknowledges that there appears to be a recommendation for auditory brain stem response testing. However, the Board notes that the April 2012 examiner opined that such a test was not necessary and that such results would not allow for a more accurate assessment of the Veteran's hearing loss disability because (a) such testing could not be used to substitute for the air and bone threshold testing necessary for rating under the Rating Schedule; and, (b) any results obtained by conducting that test would be based partially on speculation. For these reasons, the Board does not find that another examination that would likely yield further inconclusive and speculative results is necessary because remanding in order for another test to be performed that would merely yield result which would not give "us an idea of what actual thresholds may be" is unnecessary as the record already reflects similar information in the form of the August 2009 puretone testing results on which the Veteran's current evaluation is based. The Board additionally finds that the February 2012 examiner's opinion to be highly probative. Specifically, she noted that the Veteran's hearing loss does not appear to have increased in severity and that his auditory functioning is "much better than his volunteered responses." This assessment is consistent with the behavior of the Veteran observed at his hearing when he appeared to hear the questions asked of him even though he was not wearing his hearing aids and even at times when the volume of the questioner's voice was not loud. Thus, the Board finds that evaluation of the Veteran's puretone threshold averages obtained in August 2009 represent the data most favorable to the Veteran despite his unreliable responses to VA examiners. Indeed, a reasonable inference from what the VA examiners have said is that the rating of 40 percent is compensating the Veteran at a level higher than is actually warranted for his acuity level. In short, there is no further evidence that the Veteran has pointed to which is outstanding, and the Board finds that it would be futile to remand for further audiologic testing at this time given the number of inconsistent and unreliable audiometric tests of record and the April 2012 examiner's opinion. The Board also finds that the evidence of record does not demonstrate any entitlement to an evaluation in excess of 40 percent at this time. The Veteran is currently compensated on the basis of his puretone threshold averages from the August 2009 examination. Such results demonstrate Level VII hearing acuity bilaterally, and a 40 percent evaluation for such results is a correct application of the criteria. In the Veteran's numerous statements and his testimony in April 2013, the Veteran reported being unable to hear, having to have people face him and speak loudly and slowly in order to understand them, complained of difficulties with his hearing aids, and reported strife, frustration and anger both by the part of the Veteran and other people due to his inability to hear them. The Board is cognizant of the Veteran's contentions concerning his difficulty in hearing, and he described the functional impact of his hearing loss in his statements in support of his claim, his testimony at the April 2013 hearing, as well as during his VA examinations, as noted above. See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). However, the assignment of disability ratings for hearing impairment is derived from a mechanical formula. That mechanical application does not yield an evaluation in excess of 40 percent for the Veteran's current level of hearing loss. Although he feels he should be compensated for all he has gone through over the years, the VA compensation system does not contemplate the payment of damages as anticipated or calculated by a claimant. Instead, the rating criteria are used to compensate individuals for impairment in earning capacity. To that end, the criteria allow for as high as a 100 percent rating for loss of hearing acuity. The evidence in this case indicates that the Veteran's actual loss of acuity is likely at a level something less than the 40 percent he has already been awarded. Accordingly, the Board finds that an evaluation in excess of 40 percent is not warranted. See 38 C.F.R. §§ 4.7, 4.85, Diagnostic Code 6100. The Board must also determine whether the schedular evaluation is inadequate, thus 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 commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the 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 or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, 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. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is adequate. An evaluation in excess of that assigned is provided for greater loss of hearing acuity. Additionally, the diagnostic criteria adequately address losses of acuity. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. Moreover, there is no suggestion, except by the Veteran, that he cannot work on account of his hearing loss. As noted above, his impairment has been compensated at a level higher than his actual loss would likely warrant and no medical opinion evidence even suggests an inability to work on account of the degree of his hearing loss. Consequently, consideration of a TDIU rating based on loss of hearing acuity is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER An initial evaluation in excess of 40 percent for bilateral hearing loss is denied. ______________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs