Citation Nr: 1317017 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 12-10 683 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss prior to January 23, 2013, and a rating higher than 20 percent thereafter. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from March 1943 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 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. From April 8, 2009 through January 23, 2013, the Veteran's bilateral hearing loss was manifested by no worse than level XI hearing acuity in the right ear and level I hearing acuity in the left ear. 2. From January 23, 2013, the Veteran's bilateral hearing loss manifests by no worse than level XI hearing acuity in the right ear and level IV hearing acuity in the left ear. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 10 percent for bilateral hearing loss from April 8, 2009 through January 23, 2013, have been met. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012). 2. The criteria for a disability rating of 30 percent for bilateral hearing loss from effective January 23, 2013, have been met. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in a letter sent in June 2009. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The letter provided notice of the type of evidence necessary to establish a disability rating or effective date for the claimed disability under consideration, pursuant to the recent holding in Dingess v. Nicholson, 19 Vet App 473 (2006). The letter was issued prior to the decision on appeal. Thereafter, the claim was readjudicated in the March 2013 supplemental statement of the case. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. Initially, the Board acknowledges that the Veteran's service records were destroyed in an accidental fire. The Board is mindful that, in a case such as this, VA has a heightened obligation to assist the Veteran in the development of his claim. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). While the history of the disorder is certainly relevant, the Board notes that treatment records from the 1940s would not reflect the current severity of the disorder, which is the question currently before the Board. The claimant was provided the opportunity to present pertinent evidence. The Virtual VA file and available private and VA treatment records have been obtained. In addition, he has been provided with VA examinations in connection with his present claim. He has not indicated there are any additional records that VA should seek to obtain on his behalf. Therefore, the Board concludes that 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. Increased Rating Service connection for bilateral hearing loss was established by an April 2010 rating decision. The Veteran's hearing loss was assigned an initial noncompensable rating effective April 8, 2009, the date of receipt of his claim. By a rating decision in February 2013, the RO increased the Veteran's disability rating for bilateral hearing loss to 20 percent, effective January 23, 2013. The Veteran appealed for higher ratings. 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; 38 C.F.R. § 4.1. 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; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; 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; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant 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). Ratings for hearing impairment are derived by the mechanical application of the criteria to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating schedule establishes 11 auditory hearing acuity levels based on average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometric test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85 (a). Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect. 38 C.F.R. § 4.85 (b). Table VIA, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average. Table VIA will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85 (c). "Puretone threshold average," as used in Tables VI and VIA, 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 (d). Table VII, "Percentage Evaluations for Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85 (e). Where there is an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86, the rating may be based solely on puretone threshold testing. An exceptional pattern of hearing impairment occurs when the puretone thresholds in each of the four frequencies 1000, 2000, 3000, and 4000 Hertz are 55 decibels or greater or when the puretone threshold at 1000 Hertz is 30 decibels or less, and the threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86 (2012). From April 8, 2009 to January 23, 2013, the Veteran's bilateral hearing loss disability was rated as noncompensably disabling. The evidence of record for that period includes a VA examination report dated in April 2010. At that time, the puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz in the right ear were 90, 80, 75, and 95; and in the left ear were 40, 55, 60, and 60. The puretone threshold average in the right ear was 85 decibels and the average in the left ear was 54 decibels. Speech discrimination in the left ear was was 92 percent. The examination report indicated that speech recognition tests could not be performed on the right ear due to the severity of hearing loss, and noted speech recognition score in the right ear of "CNT" (could not test). In a March 2012 addendum report the same examiner who evaluated the Veteran in April 2010 indicated that speech recognition tests could not be performed "due to the limits of the audiometer" and that the Veteran's hearing loss should be rated based on puretone thresholds only. However, upon further inquiry pursuant to the January 2013 Board remand, a VA examiner in January 2013 explained that a speech recognition score in the right ear of "CNT" was used because the equipment could not be turned up loud enough for the Veteran to hear, as he was unable to hear any of the words at any decibel levels normally used for speech testing. As such, a speech recognition score of "0%" in the right ear was the Veteran's actual word recognition ability. Accordingly, applying the results to Table VI, the findings of the VA examination yield a numerical designation of XI for the right ear. The findings of the VA examination yield a numerical designation of I for the left ear. 38 C.F.R. § 4.85 (2012). Applying the results from Table VI, entering the numeral designations of XI for the right ear and I for the left ear to Table VII yields a disability rating of 10 percent under Diagnostic Code 6100. Therefore, the Board finds that a 10 percent disability rating is warranted effective April 8, 2009, based on that examination. 38 C.F.R. § 4.85 (2012). Consideration was given to section 4.86 for exceptional patterns of hearing impairment. This was in view of the fact that the Veteran's pure tone threshold levels were 55 decibel or higher at each of the four frequencies, i.e., at 1000, 2000, 3000 and 4000 hertz, in the right ear. However, when applying the results from the April 2010 VA audiological examination to Table VIA, a level VIII hearing in the right ear is obtained, less than the level XI obtained under 38 C.F.R. § 4.85. As such, a higher rating under 38 C.F.R. § 4.86(a) is not warranted. As the evidence does not reflect that either ear manifests a pure tone threshold at 1000 hertz of 30 decibels or less and 70 decibels or more at 2000 Hertz, the Veteran's hearing does not meet the pattern of exceptional hearing impairment under 38 C.F.R. § 4.86(b). Effective January 23, 2013, the Veteran's bilateral hearing loss disability was rated as 20 percent disabling. On VA audiological examination in January 2013, the puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz in the right ear were 90, 85, 80, and 90; and in the left ear were 35, 60, 60, and 65. The puretone threshold average in the right ear was 86 decibels and the average in the left ear was 55 decibels. Speech discrimination in the left ear was 76 percent and 0 percent in the right ear. Accordingly, applying the results to Table VI, the findings of the VA examination yield a numerical designation of XI for the right ear. The findings of the VA examination yield a numerical designation of IV for the left ear. 38 C.F.R. § 4.85 (2012). Applying the results from Table VI, entering the numeral designations of XI for the right ear and IV for the left ear to Table VII yields a disability rating of 30 percent under Diagnostic Code 6100. Therefore, the Board finds that a 30 percent disability rating is warranted effective January 23, 2013, based on that examination. 38 C.F.R. § 4.85 (2012). Consideration was given to section 4.86 for exceptional patterns of hearing impairment. This was in view of the fact that the Veteran's pure tone threshold levels were 55 decibel or higher at each of the four frequencies, i.e., at 1000, 2000, 3000 and 4000 hertz, in the right ear. However, when applying the results from the January 2013 VA audiological examination to Table VIA, a level VIII hearing in the right ear is obtained, less than the level XI obtained under 38 C.F.R. § 4.85. As such, a higher rating under 38 C.F.R. § 4.86(a) is not warranted. As the evidence does not reflect that either ear manifests a pure tone threshold at 1000 hertz of 30 decibels or less and 70 decibels or more at 2000 Hertz, the Veteran's hearing does not meet the pattern of exceptional hearing impairment under 38 C.F.R. § 4.86(b). The Board also notes that in support of his claim, in October 2009 the Veteran submitted a March 2009 private audiological evaluation report. The report audiometric results are in graph form, which appear to show puretone thresholds in decibels at the tested frequencies of 2000, 3000, and 4000 Hertz in the right ear as 80, 80, and 95, and at the tested frequencies of 1000, 2000, 3000 and 4000 Hertz in the left ear as 30, 55, 65, and 65. Thereafter, an April 2012 private audiological evaluation report contained audiometric results in graph form, which appear to show puretone thresholds in decibels at the tested frequencies of 1000, 2000, and 4000 Hertz in the left ear as 45, 65, and 75; and in the right ear as 95, 90, and 90. Speech discrimination score for the left ear was apparently between 84 and 85 percent. Similarly, a January 2013 private audiological evaluation report shows audiometric results in graph form, which appears to show puretone thresholds in decibels at the tested frequencies of 2000, and 4000 Hertz in the right ear as 90, and 95, and at the tested frequencies of 1000, 2000, and 4000 Hertz the left ear as 40, 60, and 70. Speech discrimination score for the left ear was 84 percent. The Veteran was noted to be functionally deaf in the right ear. While the results obtained from the March 2009, April 2012 and January 2013 private audiometric tests are not valid for rating purposes because VA examinations follow a protocol that is mandated by regulation, and the private examination reports are not shown to have followed those protocols, private audiometric findings are consistent with contemporaneous VA examination findings and would not otherwise support entitlement to an initial rating higher than 10 percent from April 8, 2009 through January 23, 2013, or a rating higher than 30 percent effective January 23, 2013. 38 C.F.R. § 4.85 (2012). The Board acknowledges the Veteran's contentions regarding impact of his hearing loss on his daily activities, and VA's obligation to resolve all reasonable doubt in the Veteran's favor. However, because assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered there is no doubt as to the proper evaluation to assign. Lendenmann v. Principi, 3 Vet. App. 345 (1992); 38 C.F.R. § 4.85, Diagnostic Code 6100, Tables VI, VIA, VII, (2012). Applying the audiological test results most favorable to the Veteran to the regulatory criteria, the Board is compelled to conclude that the preponderance of the evidence is against entitlement to an initial rating higher than 10 percent for bilateral hearing loss from April 8, 2009 through January 23, 2013, or a rating higher than 30 percent thereafter. Thus, there is no reasonable doubt to be resolved. The Veteran may always advance an increased rating claim if the severity of his hearing loss disability should increase in the future. In sum, the Board finds that an initial 10 percent disability rating for bilateral hearing loss from April 8, 2009 through January 23, 2013, and a rating of 30 percent effective January 23, 2013, and no higher, are warranted. As a final matter, the Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence. The Board finds that his symptomatology is adequately addressed by the evaluations assigned. Thus, his disability picture is contemplated by the rating schedule, and the assigned 10 and 30 percent schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. ORDER An initial disability rating of 10 percent for bilateral hearing loss from April 8, 2009 through January 23, 2013, is granted, subject to the applicable law governing the award of monetary benefits. A disability rating of 30 percent for bilateral hearing loss effective January 23, 2013, is granted, subject to the applicable law governing the award of monetary benefits. ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs