Citation Nr: 1317261 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 09-19 386 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an initial (compensable) evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from August 1959 to August 1963. This matter comes before the Board of Veterans' Appeals (Board) from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which granted service connection for bilateral hearing loss and assigned a noncompensable evaluation effective December 26, 2007. On his May 2009 substantive appeal, the Veteran indicated that he wanted a hearing before the Board to be heard at the RO (Travel Board). In a June 2009 written statement signed by his representative, the Veteran withdrew his request for a hearing. Therefore, the request for a hearing has been withdrawn. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. For the entire initial rating period, audiometric testing has revealed, at worst, average puretone threshold of 66 decibels and 76 percent speech recognition in the right ear and average puretone threshold of 55 decibels and 84 percent speech recognition in the left ear. CONCLUSION OF LAW The criteria for a compensable disability rating for bilateral hearing loss have not been met for the entire initial rating period. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.86 Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify & Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). VA has met its duty to notify and assist the Veteran. In a January 2008 pre-adjudicatory letter, VA informed the Veteran of the evidence necessary to substantiate his initial claim for service connection, evidence VA would reasonably seek to obtain, and information and evidence for which the Veteran was responsible. The January 2008 letter provided the Veteran with notice of the type of evidence necessary to establish a disability rating and effective date. The Veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court of Appeals for Veterans Claims (Court) held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess/Hartman, 19 Vet. App. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. Further, the Board notes that statements from the Veteran's representative, the Veteran's lay statements, and his DD Form 214 are of record. Pursuant to the RO's formal finding dated September 2008, service treatment records are unavailable. The Veteran was also afforded VA audiological examinations in April 2008 and October 2009 to address his hearing loss disability. 38 C.F.R. § 3.159(c)(4) (2012). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As set forth in greater detail below, the Board finds that the examinations obtained in this case are adequate as they are predicated on a review of the claims folder and medical records contained therein; contain a description of the history of the disability at issue; document and consider the Veteran's complaints and symptoms; and fully addresses the relevant rating criteria. See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). As noted, the Veteran was provided an audiological examination most recently in October 2009. There is no additional evidence indicating that there has been a material change in the severity of his service-connected hearing loss since he was last examined. See 38 C.F.R. § 3.327(a) (2012). The Board finds that the October 2009 VA examination report to be thorough and consistent with Veteran's reported symptoms. The Board has considered the observation of the Veteran's representative in the May 2013 Written Brief Presentation that the Veteran was last examined in October 2009. In this regard, the representative alleged that the case was not yet ripe for appellate review because the medical evidence was "stale." The Board acknowledges that the examination for the Veteran's hearing loss disability is over three years old; however, the Board notes that the "mere passage of time" does not render an old examination inadequate. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). In Palczewski, the Court noted that the veteran did not submit additional evidence showing a change in his condition, nor did he allege at a hearing that the condition had worsened. Further, the Court noted that a factor to consider was whether the submission or identification of additional lay or medical evidence raised the question of whether the medical evidence of record was sufficient to render a decision on the claim. Palczewski, 21 Vet. App. at 183. In this case, the Board finds that the representative did not specifically assert that there was evidence suggesting that the Veteran's disabilities had worsened, nor did the representative actually assert that there had been such a worsening. Instead, the representative asserted that a significant period of time had passed since the last VA examination. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. See VAOPGCPREC 11-95. Moreover, the Board finds that, upon review of the evidence of record, there is no medical or lay evidence demonstrating that the Veteran's service-connected hearing loss disability is worse now than it was at the time of the last VA examination in October 2009. See 38 C.F.R. § 3.327(a) (2012). For these reasons, the Board finds that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Hearing Loss Rating Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The Board has considered whether staged ratings are for consideration; however, as the Board will discuss in more detail below, the evidence of record does not establish that the Veteran's service-connected hearing loss has increased in severity during the course of this appeal to warrant a staged rating. The Rating Schedule provides rating tables for the evaluation of hearing impairment. Table VI assigns a Roman numeral designation (I through XI) for hearing impairment based on a combination of percent speech discrimination and the puretone threshold average (the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four). 38 C.F.R. § 4.85 (2012). Table VII is used to determine the percentage evaluation by combining the Table VI Roman numeral designations for hearing impairment in each ear. Id. When evaluating service-connected hearing impairment, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned in audiometric evaluations. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). 38 C.F.R. § 4.86 provides for exceptional patterns of hearing impairment. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral 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). Each ear is evaluated separately. Id. When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation from either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. § 4.86(b) (2012). That numeral is then elevated to the next higher Roman numeral. Id. Each ear is evaluated separately. Id. Bilateral Hearing Loss Rating Analysis The Veteran contends that his hearing loss disability warrants, at the very least, a 10 percent disability evaluation. See Veteran's October 2008 statement. The Board has reviewed all the evidence of record, including the Veteran's lay statements, VA audiological examinations, and the Veteran's hearing testimony before the RO in September 2009. For the reasons discussed below, the Board finds that the criteria for a compensable disability rating for bilateral hearing loss have not been met for the entire initial rating period on appeal. On the authorized VA audiological evaluation in April 2008, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 35 50 65 65 LEFT 15 45 60 60 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 100 percent in the left ear. On the authorized VA audiological evaluation in October 2009, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 45 65 75 80 LEFT 20 60 70 70 Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 84 percent in the left ear. The April 2008 audoimetric findings, applied to Table VI, yield a numeric designation of (I) in the right ear (54 decibel puretone threshold average, and 94 percent speech discrimination) and a numeric designation of (I) in the left ear (45 decibel puretone threshold average, and 100 percent speech discrimination). The numeric designation for the right ear (I) along with the numeric designation for the left ear (I), entered into Table VII, produce a 0 percent evaluation for hearing impairment. The October 2009 audoimetric findings, applied to Table VI, yield a numeric designation of (IV) in the right ear (66 decibel puretone threshold average, and 76 percent speech discrimination) and a numeric designation of (II) in the left ear (55 decibel puretone threshold average, and 84 percent speech discrimination). The numeric designation for the right ear (IV) along with the numeric designation for the left ear (II), entered into Table VII, produce a 0 percent evaluation for hearing impairment. The Board notes that puretone thresholds reported on VA audiological evaluations were not 55 decibels or more at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) and were not recorded at 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz in either ear. Thus, the provision of 38 C.F.R. § 4.86 for exceptional patterns of hearing impairment do not apply in this case. Based on the April 2008 and October 2009 VA audiological evaluations, the Board finds that a compensable evaluation is not warranted at any point during the initial appeal period. The Board has considered the lay statements submitted by the Veteran and his representative and is aware of the complaints about the Veteran's inability to hear well. The Veteran is competent to describe his hearing loss. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran's description of his service-connected disability must be considered in conjunction with the clinical evidence of record as well as the pertinent rating criteria. In this regard, the Board emphasizes that disability ratings are derived by a mechanical application of the rating schedule. Lendenmann, 3 Vet. App. 349. Thus, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. Here, mechanical application of the rating schedule to the audiometric findings does not establish entitlement to a compensable evaluation for bilateral hearing loss. In Martinak, 21 Vet. App. at 455, the Court held that, relevant to VA audiological examinations, 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. 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. While the April 2008 VA examiner did not note functional effects caused by hearing loss, the October 2009 VA examiner addressed functional effects of hearing loss by noting that the Veteran experienced significant occupational effects and hearing difficulty. In this regard, the Board notes that the Court's rationale in Martinak requiring an examiner to consider the functional effects of a Veteran's hearing loss disability involves the potential application of 38 C.F.R. § 3.321(b) in considering whether referral for an extra-schedular rating is warranted. Specifically, the Court noted that, "unlike the rating schedule for hearing loss, § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extra [-]schedular rating is warranted. The Secretary's policy [requiring VA audiologists to describe the effect of a hearing disability on a Veteran's occupational functioning and daily activities] facilitates such determinations by requiring VA audiologists to provide information in anticipation of its possible application." Martinak at 455. The evidence of record also includes the Veteran's testimony as to functional impairment of his hearing loss. He testified that he would get words mixed up and that people did not speak loudly enough. He indicated that his hearing loss interfered with his daily activities because he had trouble hearing a car horn or sirens. Regarding his work, he indicated that it interfered with work when his boss was trying to tell him something and he would have to say there he didn't recognize what was said. See RO hearing transcript dated September 2009 pg. 6-8. Therefore, the functional effects of his hearing loss disability are adequately addressed in the record and are sufficient for the Board to consider whether referral for an extra-schedular rating is warranted under 38 C.F.R. § 3.321(b). Extraschedular Consideration The Board has considered whether referral for an extraschedular evaluation is warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's hearing loss disability is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria specifically provides for disability ratings based on audiometric evaluations, to include speech discrimination testing. In this Veteran's case, the Board recognizes and has considered the Veteran's complaints and difficulty in understanding people when they speak, hearing muffled sounds, and intermittent difficulty hearing sirens or horns. The schedular rating criteria specifically provides for ratings based on all levels of hearing loss, including exceptional hearing patterns which are not demonstrated in this case, and as measured by both audiological testing and speech recognition testing. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155 (2012). " Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (2012). In this case, the record includes the VA examination report which addressed functional impairment in addition to the Veteran's lay evidence of functional limitations related to his difficulties with hearing people or hearing horns or sirens. The functional limitations imposed by the Veteran's disability are specifically contemplated by the criteria discussed above, including the effect of the Veteran's hearing loss on his occupation and daily life. In the absence of exceptional factors associated with the hearing loss disability, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An initial compensable evaluation for bilateral hearing loss is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs