Citation Nr: 1317019	
Decision Date: 05/23/13    Archive Date: 05/31/13

DOCKET NO.  08-39 389	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Waco, Texas



THE ISSUE

Entitlement to an increased rating in excess of 10 percent for the service-connected bilateral hearing loss.



REPRESENTATION

Appellant represented by:	Texas Veterans Commission



WITNESSES AT HEARING ON APPEAL

The Veteran, his wife, and L.H.



ATTORNEY FOR THE BOARD

J. Nichols, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1967 to October 1970.

This matter initially came before the Board of Veterans' Appeals (Board) from a February 2008 rating decision of the RO that continued a noncompensable rating.  The Veteran perfected his appeal.

By way of a February 2010 Decision Review Office (DRO) decision, the Veteran was assigned an increase for his service-connected hearing disability to 10 percent disabling, effective in January 2010, based on the audiological testing results from a January 2010 VA examination.

The Board remanded this matter for further development in December 2012.

The Veteran testified at a hearing held before the undersigned Veterans Law Judge (VLJ) at the RO in August 2012.  The record contains a transcript of the hearing.  

A review of the Virtual VA paperless claims processing system reveals documents that are pertinent to the present appeal. 


FINDINGS OF FACT

1.  The VA audiological testing in December 2011 showed that the service-connected hearing loss disability was manifested by level VII acuity in the left ear and level II in the right ear.

2.  The VA audiological testing in January 2013 showed that  the service-connected hearing loss disability was manifested by level VIII acuity in the left ear and level II in the right ear.


CONCLUSION OF LAW

The criteria for the assignment of an increased evaluation in excess of 10 percent for the service-connected bilateral hearing loss disability have not been met.  38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.85, 4.86 including  Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist the Veteran in the development of a claim.  VA regulations for the implementation of VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Under VCAA, VA 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

In a June 2007 letter, the RO notified the Veteran of the evidence needed to substantiate the claim for an increased rating for bilateral hearing loss disability.  This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).

The Veteran had his status substantiated.  The Veteran was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claim, in the June 2007 letter.  

A June 2008 letter also provided information regarding disability ratings and the criteria applicable to the Veteran's rating claim in compliance with a decision of the Court that was subsequently vacated by the Federal Circuit.  See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated sub nom.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).

VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4). 

In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service private and VA treatment records.  The Veteran was also afforded VA audiological examinations, including recently in January 2013 in compliance with the Board's December 2012 remand instructions.  Id.  

For these reasons, the VA audiological examinations were adequate for rating purposes because they employed the Maryland CNC speech discrimination test and otherwise contained data allowing the Board to determine whether the Veteran's rating was appropriate pursuant to the applicable regulatory criteria.

Furthermore, the Veteran was afforded an opportunity to present testimony at a hearing before the Board.   During the hearing, the undersigned VLJ clarified the issue on appeal, identified an evidentiary deficit, and suggested the submission of additional evidence to support the Veteran's claim.  The actions of the VLJ supplement VCAA and comply with any related duties owed during a hearing.

For these reasons, the Board finds that VA has complied with the VCAA's notification and assistance requirements.  The claim for an increased evaluation for the service-connected bilateral hearing loss disability is thus ready to be considered on the merits.


Rating Principles

Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27.  

Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  

Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability.  38 C.F.R. § 4.1. 

When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found.  Such separate disability ratings are known as staged ratings.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned).  

In Hart v. Mansfield, the Court extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings."  Hart v. Mansfield, 21 Vet. App. 505, 511 (2007).  Here, the evidence does not show significant changes in the disability during the period on appeal, and a uniform evaluation is warranted.

Under the applicable criteria disability ratings are determined by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  

Hearing loss disability evaluations range from 0 percent to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1000, 2000, 3000 and 4000 Hertz.

The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness.  VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a puretone audiometry test.  The vertical lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  See 38 C.F.R. § 4.85.  

The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss.  The percentage evaluation is found from Table VII by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity.  For example, if the better ear has a numeric designation Level V and the poorer ear has a numeric designation Level VII, the percentage evaluation is 30 percent.  See 38 C.F.R. § 4.85.

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(a),(b).


Analysis

The Veteran contends that his service-connected bilateral hearing loss disability should be rated higher than the 10 percent disability evaluation currently awarded to him.  He reports having continued difficulty with his hearing and understanding speech that impact his ability to understand conversation and enjoy activities.

The VA treatment records from 2012 show that the Veteran received superior hearing aids to assist with his hearing disability.

Even when considering the two most recent VA audiograms (December 2011 and January 2013) reflect the Veteran's hearing acuity during the period of the appeal, these audiograms do not provide findings that would warrant the Veteran the assigned 10 percent rating under Diagnostic Code 6100.  

The December 2011 VA audiology examination shows relevant pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Avg.
RIGHT
30
45
70
85
57.50
LEFT
75
65
95
90
81.25

Speech audiometry (CNC) revealed speech recognition ability of 96 percent in the right ear and of 88 percent in the left ear.

From Table VI/Table VIA of 38 C.F.R. § 4.85, Roman Numeral VII is derived for the left ear and Roman Numeral II is derived for the right ear when intersecting the percent of speech discrimination row with the puretone threshold average column.  

The left ear is considered the poorer ear according to Table VII, 38 C.F.R. § 4.85.  A 10 percent evaluation is derived from Table VII by intersecting row II, the better ear (right), with column VII, the poorer ear (left).  Furthermore, when the exceptional pattern in the left ear is considered, the evaluation still remains at 10 percent.  See 38 C.F.R. § 4.86.

The January 2013 VA audiology examination shows relevant pure tone thresholds, in decibels, were as follows:





HERTZ



1000
2000
3000
4000
Avg.
RIGHT
35
50
70
90
~61.25
LEFT
80
65
95
95
~83.75

Speech audiometry (CNC) revealed speech recognition ability of 96 percent in the right ear and of 88 percent in the left ear.

From Table VI/Table VIA of 38 C.F.R. § 4.85, Roman Numeral VIII is derived for the left ear and Roman Numeral II for the right ear when intersecting the percent of speech discrimination row with the puretone threshold average column.  

The left ear is considered the poorer ear according to Table VII, 38 C.F.R. § 4.85.  A 10 percent evaluation is derived from Table VII by intersecting row II, the better ear (right), with column VIII, the poorer ear (left).  Furthermore, when the exceptional pattern in the left ear is considered, the evaluation still remains at 10 percent.  See 38 C.F.R. § 4.86.

After a careful review of the evidence of record, both subjective and objective, the Board finds that based on the reports during the period of the appeal, the Veteran's hearing tests do not support findings that would warrant more than the assigned 10 percent rating under Diagnostic Code 6100.  

The Veteran's subjective report of difficulty hearing under various circumstances aforementioned unfortunately cannot be the conclusive basis for a rating.  See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (finding that lay testimony is competent when it regards features or symptoms of injury or illness).  

The Board is bound to apply the VA rating schedule, under which the rating criteria are defined and limited by audiometric findings.  This criteria measures hearing acuity directly in a controlled laboratory environment.  In this regard, all of the aforementioned VA reports, particularly the most recent audiometric study completed in January 2013, showed no basis for any increase in disability evaluation.  

The above evidence reflects that application of the rating schedule to the numeric designations assigned based on the two VA audiological examination reports dated during the appeal period (demonstrating hearing acuity at its worst) indicates that the appropriate rating for the bilateral hearing loss disability is 10 percent for the period in question.  See 38 C.F.R. § 3.85.  The Veteran did not meet the criteria for a higher rating during any discrete period involved in this appeal.

In Martinak v. Nicholson, 21 Vet. App. 447 (2007) the Court addressed a challenge to VA's audiological testing practices; specifically, whether VA's policy of conducting all audiometry testing of hearing-loss claimants in a sound-controlled room was valid.  

The Court also addressed the requirements for an adequate VA audiological examination report.  The Court upheld VA's policy of conducting audiometry testing in a sound controlled room.  The Court also 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.  Subsequently, however, in Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1280 (Fed. Cir. 2009), the Federal Circuit indicated that, "while the effects of a disability on one's daily life are arguably relevant to a doctor conducting a medical examination, those effects are not relevant to a disability rating made by a ratings specialist," and "VA has never adopted an interpretation to the contrary."

The VA examiner for both of the December 2011 and January 2013 examinations described the functional effects caused the Veteran's hearing loss disability in their reports.  Given the Federal Circuit's statement in Vazquez-Flores above, the Board finds the description of functional effects in the December 2011 and January 2013 examination reports is not relevant to the actual rating of the service-connected bilateral hearing loss disability as the rating criteria is based on objective testing results.


Extraschedular Consideration

While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether the claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating.  38 C.F.R. § 3.321(b)(1).  

The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization so as to render the regular schedular standards impractical.  

The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate.  There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria.  

If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, inadequate and no referral is required.  Thun v. Peake, 22 Vet. App. 111 (2008).  

Here, the rating criteria is found reasonable describe the disability level and symptomatology pertaining to the Veteran's service-connected bilateral hearing loss.  As indicated, the Veteran reports the inability to understand people in conversations.

The Board is of the opinion that the Rating Schedule measures and contemplates these aspects of the Veteran's hearing loss disability.  As explained in the proposed rule for the current version of DC 6100, the criteria of DC 6100 were revised in 1987 with the goal of recognizing the impact of hearing loss in higher frequencies, and to provide a more accurate picture of true hearing impairment.  See 52 Fed. Reg. 17607 (May 11, 1987).  

As a result, VA changed its testing methods and, in conjunction with the Department of Medicine and Surgery, developed amendments to 38 C.F.R. § 4.85, 4.86a, 4.87a and Tables VI and VII.  

In particular, puretone averaging was to be accomplished using tone bursts at 1000, 2000, 3000 and 4000 Hertz, and speech recognition was to be measured using the Maryland CNC word lists which contained words with sounds in the 3000 and 4000 Hertz range. 

Overall, the new schedule was intended to evaluate hearing loss based on a combination of puretone averages and speech discrimination, which was thought to provide for a more accurate representation of actual hearing impairment by recognizing that individuals with slight to moderate decibel loss as determined by puretone averaging may have significant impairment of speech and vice versa. 

Additionally, the rating schedule was revised to accommodate language difficulties and other factors which produced inconsistent speech audiometry scores, and to recognize exceptional patterns of hearing impairment.  Notably, VA determined that "Table VII was developed during months of consultations with our Department of Medicine and represents the best judgment of experts in this field." 

Based upon the stated factors and considerations undertaken by VA and medical experts in developing the current criteria of DC 6100, the Board finds that the schedular rating currently assigned reasonably describes the Veteran's disability level and symptomatology.  The Veteran's description of an inability to hear and discriminate speech has been measured according to puretone averages and speech discrimination.  

As the preponderance of the evidence is against the claim for an increased evaluation in excess of 10 percent for bilateral hearing loss disability, the benefit-of-the-doubt rule does not apply, and the Board must deny the claim.  See U.S.C.A. §§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).



ORDER

An increased rating in excess of 10 percent for the service-connected bilateral hearing loss  disability is denied.


____________________________________________
STEPHEN L. WILKINS 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs