Citation Nr: 1317266	
Decision Date: 05/28/13    Archive Date: 06/06/13

DOCKET NO.  09-37 291	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to an initial compensable evaluation for bilateral hearing loss disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C.A. Skow, Counsel


INTRODUCTION

The Veteran served on active duty from April 1970 to January 1971.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

The Veteran requested a hearing before the Board, and VA scheduled him for an April 2011 videoconference hearing before a Veterans Law Judge at the RO.  The Veteran failed to appear for the hearing and has not requested that the hearing be rescheduled.  As such, the request for a hearing is deemed to have been withdrawn.  38 C.F.R. § 20.702 (c), (d).

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.


FINDINGS OF FACT

1.  In November 2007, the Veteran's hearing loss disability was manifested by an average pure tone decibel loss of 54 with 88 percent speech discrimination in the right ear, and an average pure tone decibel loss of 49 with 92 percent speech discrimination in the left ear.

2.  In November 2008, the Veteran's hearing loss disability was manifested by an average pure tone decibel loss of 56 with 92 percent speech discrimination in the right ear, and an average pure tone decibel loss of 48 with 96 percent speech discrimination in the left ear.


CONCLUSION OF LAW

The criteria for a compensable evaluation for bilateral hearing loss disability are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.85, Tables VI, VIA, VII, Diagnostic Code 6100, 4.86 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.

As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008.

The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).

The timing requirement articulated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

The Board finds that VA satisfied its duty to notify.  The record reflects that VA sent to the Veteran all required notice in an October 2008 letter, prior to the rating decision on appeal.  The Veteran's increased rating claim arises from his disagreement with the initial evaluations assigned following the grant of service connection.  It is well-established that, in cases where service connection has been granted and an initial rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven.  As a result, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

The Board also finds that VA satisfied its duty to assist the Veteran in the development of his claim.  VA obtained all relevant medical treatment records identified by the Veteran and associated these records with the claims file.  VA further afforded the Veteran appropriate VA audiological evaluations in November 2007 and November 2008.  The reports of these VA authorized examinations reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints and conducted an appropriate evaluation of the Veteran.  These examination reports include sufficient findings to rate the Veteran's hearing loss disability under the appropriate rating criteria.   In evaluating the adequacy of the examination report, the Board observes that in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the 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.  See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2012).  In the present case, the November 2008 examiner included a discussion of the effects of the Veteran's hearing loss, and the record otherwise includes the Veteran's statements concerning its effects.  Thus, the Board concludes that these examination reports are adequate for purposes of rendering a decision in the instant appeal.  See 38 CF.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the Veteran's claim; the Board is also unaware of any such evidence.  Accordingly, the Board will address the merits of the claim.

Evaluation of Bilateral Hearing Loss Disability

The Veteran seeks an initial compensable evaluation for bilateral hearing loss disability.  He believes that his disability is sufficiently severe to warrant a compensable evaluation.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Pertinent Laws and Regulations

Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  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.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14.  The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity."  Brady v. Brown, 4 Vet. App. 203, 206 (1993).  This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14.  The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes.  Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993).

Separate evaluations may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be "staged."  Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001).  A disability may require re- evaluation in accordance with changes in a veteran's condition.  It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history.  38 C.F.R. § 4.1.

In general, to evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness.  38 C.F.R. §§ 4.85, 4.87, Tables VI, VIa, VII.  Organic impairment of hearing acuity is measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by a pure tone audiometry test in the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second.  See 38 C.F.R. § 4.85(a), (d). Ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  The schedular evaluations are intended to make proper allowance for improvement by hearing aids.  38 C.F.R. § 4.86.

Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86. Specifically, an exceptional pattern of hearing loss is hearing loss of 55 decibels or more in each of the four specified frequencies (i.e. 1000, 2000, 3000, and 4000 Hertz), and hearing loss with a pure tone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  38 C.F.R. § 4.86(a), (b).

Schedular Analysis

After carefully reviewing the evidence of record, the Board finds that the preponderance of the evidence is against an initial compensable evaluation for bilateral hearing loss disability.  The evidence of record does not more nearly reflect the criteria for a compensable evaluation.  38 C.F.R. § 4.7.

On the authorized VA audiological examination in November 2007, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
40
75
80
LEFT
20
25
35
65
70

There was an average pure tone decibel loss (1000 Hertz through 4000 Hertz) of 54 in the right ear with 88 percent speech discrimination and 49 in the left ear with 92 percent speech discrimination.

Applying 38 C.F.R. § 4.85, Table VI, to the above audiological findings, the Veteran has a numeric designation of II for his right ear and I for his left ear. Application of 38 C.F.R. § 4.85, Table VII results in a finding that a 0 percent disability evaluation for the service-connected bilateral hearing loss is warranted.

On the authorized VA audiological evaluation in November 2008, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
40
80
85
LEFT
25
20
30
65
75

There was an average pure tone decibel loss of 56 in the right ear with 92 percent speech discrimination and 48 in the left ear with 96 percent speech discrimination.

Applying 38 C.F.R. § 4.85, Table VI, to the above audiological findings, the Veteran has a numeric designation of I for both his right ear and left ear. Application of 38 C.F.R. § 4.85, Table VII results in a finding that a 0 percent disability evaluation for the service-connected bilateral hearing loss is warranted.

Neither the pure tone thresholds for November 2007 nor November 2008 reflect an exceptional pattern of hearing loss as contemplated by 38 C.F.R. § 4.86(a) because the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is not 55 decibels or more; and, as such, that provision is inapplicable.  Additionally, an exceptional pattern of hearing loss as contemplated by 38 C.F.R. § 4.86(b) is not shown as the documented pure tone threshold for the Veteran are not 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, and thus, neither Table VI or Table VIa is applicable.  38 C.F.R. § 4.86(b).

To the extent that the Veteran reports that his acuity is worse than evaluated, the Board has considered his statements.  This evidence is both competent and credible in regard to reporting worsening hearing acuity.  However, far more probative of the degree of the disability are the results of testing prepared by skilled professionals since the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss.  In essence, lay statements are of limited probative value.  As a layperson, the Veteran is competent to report difficulty with his hearing; however, he is not competent to assign particular speech recognition scores or puretone decibel reading to his current acuity problems.  As indicated above, ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry.  See Lendenmann, supra.

The Board has further considered the copies of audiogram results by Elite Hearing Aid Center dated February 2008 and Beltone Audiogram dated November 2008 submitted by the Veteran.  These examinations are inadequate for VA rating purposes.  For VA rating purposes, an examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test.  See 38 C.F.R. § 4.85.  In the present case, the Board notes that speech discrimination scores of 84 percent for the right ear and 80 percent for the left ear were noted in the February 2008 report from Elite Hearing Aid Center.  However, February 2008 audiogram does not show that testing was performed using the Maryland CNC word list.  Thus, it is inadequate for VA rating purposes.  Similarly, the November 2008 audiological examination does not include any speech discrimination scores.  Thus, it is also inadequate for VA rating purposes.  The Board further observes that both of these audiometric tests were conducted for the purpose of obtaining hearing aids rather than for VA evaluation purposes with the requirements thereof in mind.  Also, on VA audiological evaluation dated in November 2008, the examiner reviewed the private audiological results and noted that the private examiners were salesmen, rather than state-licensed audiologists, without the requisite competency to evaluate hearing loss for VA purposes.  Absent any indication that the private audiometry testing was conducted in accordance with the regulatory guidelines of 38 C.F.R. § 4.85(a), the results have diminished probative value.  Moreover, the VA audiological examination dated in November 2008 post dates the November 2008 private test such that any worsening of hearing acuity since the prior 2007 VA examination would have been shown at that time.

Accordingly, the claim for a compensable evaluation for hearing loss disability is denied.  Absent a relative balance of the evidence, the evidence is not in equipoise and the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990).  The Board believes that a uniform disability evaluation is warranted.  Because the disability has not met the criteria for a higher evaluation at any time during the appeal period, there is no basis for a staged rating.  See Fenderson and Hart, supra.

Extraschedular Consideration

Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance.  See also VAOPGCPREC 6-96.  However, the Board can address the matter of referral of a disability to appropriate VA officials for such consideration. 

Under the applicable criteria, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1); see also Fanning v. Brown, 4 et. App. 225, 229 (1993).

As noted previously, in Martinak v. Nicholson, 21 Vet. App. 447, 453-4 (2007), the Court held that a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report of the examination to facilitate determinations regarding extraschedular consideration.  The Court noted that, unlike the rating schedule for hearing loss disability, 38 C.F.R. § 3.321(b) does not rely exclusively on objective test results to determine whether an extraschedular rating is warranted.  See Martinak, 21 Vet. App. at 455. 

Notably, the November 2008 VA examiner noted that the Veteran reported that the effects of his hearing loss on his occupational functioning and daily activities included difficulty hearing from the right side, difficulty understanding speech in general, difficulty understanding speech on the phone, and difficulty understanding people with accents.  The Veteran wore recently purchased hearing aids.  Based on these reported descriptions of the functional effects of the Veteran's hearing loss disability, the Board finds that the VA examination report is in compliance with Martinak, and that the evidence of record is sufficient for the Board to consider whether referral for an extraschedular rating is warranted under 38 C.F.R. § 3.321(b)  .

Under Thun v. Peake, 22 Vet App 111 (2008), decided after the Court's decision in Martinak, there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto 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 to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected bilateral hearing loss disability is inadequate.  A comparison between the levels of severity and symptomatology of the Veteran's hearing loss with the established criteria found in the rating schedule for hearing loss shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology; as discussed above, the rating criteria considers puretone decibel hearing loss and speech discrimination hearing loss.

Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot.  In any event, the Board observes that, even if the available schedular evaluation for the Veteran's hearing loss disability were inadequate [which it manifestly is not], the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms," nor does he so contend. 

The Board has been unable to identify an exceptional or unusual disability picture, and neither has the Veteran.  As noted above, the Veteran has reported that he has trouble hearing and understanding others and requires help from hearing aids.  The Board however finds that these functional effects caused by the Veteran's hearing disability, which undoubtedly exist, do not constitute any exceptional or unusual disability picture warranting consideration of an extraschedular rating.

In short, there is nothing in the record to indicate that the Veteran's service-connected hearing loss disability causes impairment with employment over and above that which is contemplated in the assigned schedular rating. The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1)  is not warranted.

In this case, the manifestations of the disability are contemplated by the schedular criteria governing hearing loss disability.  Therefore, referral for extra-schedular consideration is not warranted.


ORDER

An initial compensable evaluation for bilateral hearing loss disability is denied.




____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs