Citation Nr: 1317970	
Decision Date: 06/03/13    Archive Date: 06/11/13

DOCKET NO.  09-49 077	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an initial compensable rating prior to January 30, 2011, for bilateral hearing loss, to include on an extraschedular basis.

2.  Entitlement to an initial rating higher than 10 percent beginning January 30, 2011, for bilateral hearing loss, to include on an extraschedular basis.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse



ATTORNEY FOR THE BOARD

P. Childers, Counsel
INTRODUCTION

The Veteran served on active duty from February 1969 to December 1970, from July 1988 to December 1988, and from May 2006 to February 2008, including combat service in the Republic of Vietnam, and his decorations include the Bronze Star Medal with "V" device, the Army Commendation Medal with "V" device and the Combat Infantryman Badge.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for bilateral hearing loss and assigned a noncompensable rating effective February 2, 2008.

In March 2011 the Veteran and his spouse testified by videoconference from the St. Petersburg RO before the undersigned Veterans Law Judge sitting in Washington, D.C.  A transcript of that hearing is in the claims file.

In December 2011 the Board remanded the matter for provision to the Veteran of a new VA examination, and for referral of the matter to the VA Chief Benefits Director or the Director of the VA Compensation and Pension Service for consideration of the assignment of an extraschedular evaluation.  In January 2012 the requested examination was done, and the evidence is now sufficient for adjudication pursuant to the rating schedule.  However, the issue of an extra-schedular rating was not referred, as instructed by the Board, to the VA Chief Benefits Director, or to the Director of the VA Compensation and Pension Service.  See Stegall v. West, 11 Vet. App. 268 (1998) (providing that remand by the Board confers upon the veteran, as a matter of law, the right to compliance with the Board's remand order).   

In a May 2012 rating decision, the RO awarded a 10 percent rating for the Veteran's bilateral hearing loss, effective January 30, 2011.

The issue of entitlement to special monthly compensation based on loss of use of bilateral hearing was raised by the Veteran's representative in April 2013, but it has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  

The issue of an extraschedular rating for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.


FINDINGS OF FACT

1.  Audiology testing done prior to January 30, 2012, found hearing thresholds, pursuant to the rating schedule, of no more than level III hearing in either ear.

2.  Audiology testing done dated since January 30, 2011, shows that, pursuant to the rating schedule, no more than level IV hearing in both ears since January 30, 2011.


CONCLUSIONS OF LAW

1.  The criteria for an initial compensable schedular rating before January 30, 2011, for bilateral hearing loss are not met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2012).

2.  The criteria for an initial schedular rating higher than 10 percent beginning January 30, 2011, for bilateral hearing loss are not met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. § 4.1, 4.3, 4.7, 4.7, 4.85, Diagnostic Code 6100 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  However, in the present matter, the claim for a higher disability rating for bilateral hearing loss arises from the initial grant of service connection.  As this is an appeal arising from the initial grant of service connection, the notice that was provided to the Veteran in April 2008 before service connection was granted was legally sufficient and no further notice under the VCAA is necessary.  See Hartman v. Nicholson, 483 F.3d 1311 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

All pertinent records from all relevant sources identified by the Veteran, and for which he authorized VA to request, have been obtained.  VA has associated with the claims file the service treatment records and reports of his post-service care.  He was also afforded VA examinations, and testified regarding his claim for a higher rating before the undersigned Veterans Law Judge in a March 2011 hearing.

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  During the 2011 Board hearing the Veteran was ably assisted by an accredited representative from the Veterans of Foreign Wars.  The representative, and the Veterans Law Judge, asked questions to ascertain the severity of the Veteran's service-connected hearing loss disability.  No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative.  The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for an increased rating.  Additionally, the Veteran has demonstrated actual knowledge of what was needed for the claim to be granted, as evidenced by the questioning pursued by his representative at the hearing.  Neither the representative nor the Veteran have suggested any deficiency in the conduct of the hearing.  Therefore, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).  

The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the claim herein addressed on the merits, and has not argued that any error or deficiency in the accomplishment of the duties to notify and assist has prejudiced him in the adjudication of his appeal.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006).  In view of the forgoing, the Board finds that VA has satisfied its duties to notify and assist under the governing law and regulation.  The Board will therefore review the merits of the Veteran's claim, de novo.

Merits

In a rating decision in September 2008, the RO granted service connection for bilateral hearing loss and assigned a noncompensable (0 percent) rating effective February 2, 2008.  The Veteran appealed the assigned rating.

On January 30, 2012, the Veteran was accorded a VA examination; and in a rating decision dated in May 2012, the RO increased the rating for the Veteran's service-connected bilateral hearing loss to 10 percent, effective January 30, 2011.  

General Rating Principles

Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder.  38 U.S.C.A. § 1155.  Separate diagnostic codes identify the various disabilities.  Id.  It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor.  38 C.F.R. § 4.3.  If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 U.S.C.A. § 1155; 38 C.F.R.§§ 4.1, 4.7.

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Rating Schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on puretone thresholds and controlled speech discrimination (Maryland CNC) testing.  Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear.  38 C.F.R. § 4.85.

The "puretone threshold average" as used in Table VI, is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four.  This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa.  38 C.F.R. § 4.85(d).

Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).

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).

Facts and Analysis

Active duty records dated in July 2007 note that the Veteran had failed to regain auditory acuity after shooting a 50 caliber weapon.  The provisional diagnosis was "sudden reduced auditory acuity."  Audiology testing in August 2007 found hearing thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz in the RIGHT ear of 20, 30, 55, and 55, respectively; and 30, 55, 60, and 55, respectively, in the LEFT ear; for an average of 40 decibels in the RIGHT ear, and 50 decibels in the LEFT ear.  Diagnosis was sensorineural hearing loss.  The evidence confirms that the Veteran was issued bilateral hearing aids in September, 2007, during his deployment in Iraq and placed on profile.  Although speech discrimination scores were not ascertained during the August 2007 test, hearing threshold averages alone equate to Level II hearing in the right ear, and Level III hearing in the left ear, which equates to a noncompensable rating.  38 C.F.R. § 4.85, Tables VIA and VII.  See Lendenmann, 3 Vet. App. 345, 349 (hearing evaluations are performed by mechanically applying the rating criteria to certified test results).

Testing in January 2008 found hearing thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz of 20, 30, 50, and 55, respectively, in the RIGHT ear; and 30, 50, 55, and 65, respectively, in the LEFT ear; for an average of 38.75 decibels in the RIGHT ear, and 50 decibels in the LEFT ear.  Although speech discrimination scores were not reported, hearing threshold averages alone equate to Level I hearing in the right ear, and Level III hearing in the left ear, which equates to a noncompensable rating.  38 C.F.R. § 4.85, Tables VIA and VII.  Lendenmann, 3 Vet. App. 345, 349 (hearing evaluations are performed by mechanically applying the rating criteria to certified test results).

In February 2008 the Veteran separated from active duty service.

On VA audiological examination in August 2008, puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz were 20, 25, 50, and 60, respectively in the RIGHT ear; and 20, 55, 60, and 65, respectively, in the LEFT ear; for an average of 38.75 decibels in the RIGHT ear, and 50 decibels in the LEFT ear.  Speech discrimination scores were 82 percent in the right ear and 84 percent in the left ear.  These findings correspond to Level III hearing in the right ear, and Level II hearing in the left ear, which equates to a noncompensable rating.  38 C.F.R. § 4.85, Tables VI and VII.  Evaluation under the provisions of 38 C.F.R. § 4.86 is not warranted as the criteria for an exceptional rating are not shown.  There is no basis for a compensable rating based on this evidence.  Lendenmann, 3 Vet. App. 345, 349 (hearing evaluations are performed by mechanically applying the rating criteria to certified test results).

On VA audiological examination in January 2012, puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz were 35, 40, 65, and 70, respectively, in the RIGHT ear; and 40, 65, 70, and 75, respectively, in the LEFT ear; for an average of 52.5 decibels in the RIGHT ear, and 62.5 decibels in the LEFT ear.  Speech discrimination scores were 82 percent in the right ear and 76 percent in the left ear.  These findings correspond to Level IV hearing in the right and left ears, which equates to a 10 percent rating.  38 C.F.R. § 4.85, Tables VI and VII.  Evaluation under the provisions of 38 C.F.R. § 4.86 is not warranted as the criteria for an exceptional rating are not shown.  There is no basis for a rating greater than 10 percent based on this evidence.  Lendenmann, 3 Vet. App. 345, 349.

The Board notes the representative's request for an earlier effective date for the 10 percent rating for hearing loss, and reiterates that certified test results do not support the assignment of a compensable rating prior to January 30, 2012.  Lendenmann.  Notwithstanding that there was no clinical evidence in this case in support of an increase prior to January 30, 2012, an effective date of January 30, 2011 was granted by the RO.  Accordingly, and for all the foregoing reasons, the Board finds that the criteria for an initial noncompensable rating prior to January 30, 2011, and for an initial rating higher than 10 percent beginning January 30, 2011, are not met, and a staged rating, other than has already been established by the agency of original jurisdiction, is likewise not warranted.  Fenderson, 12 Vet. App. 119, 126-27.

The Board is mindful that the Veteran wears prescribed hearing aids; however consideration of the use of hearing aids is not pertinent to the evaluation of hearing loss as ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered.  Lendenmann, 3 Vet. App. 345.  Moreover, during the January 2012 evaluation the Veteran duly reported that he could not understand conversations on the telephone or when in crowds, and that his hearing loss affected his ability to do his job.  Thus, the evaluator was aware of the functional impact of the Veteran's hearing loss disability.  Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).

TDIU consideration

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that in an initial rating claim, a claim for TDIU [total disability rating for compensation based on individual unemployability] is part of an increased rating claim when such claim is raised by the record.  A TDIU may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  38 C.F.R. § 4.16.  When evaluating TDIU, the pertinent inquiry is whether a veteran's service-connected disability(y)s alone are of sufficient severity to produce unemployability - not whether a veteran is unemployable solely due to his/her service-connected disability(y)s.  See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  Here, although the Veteran representative cites 38 C.F.R. § 4.16(b) in support of the Veteran's entitlement to an extraschedular evaluation for his bilateral hearing loss, the evidence shows that the Veteran is engaged in substantially gainful employment.  Accordingly, the Board finds that an inferred claim for TDIU is not raised by the record.  


ORDER

A compensable schedular rating for bilateral hearing loss, prior to January 30, 2011, is denied.

A schedular evaluation in excess of 10 percent for bilateral hearing loss is denied.

REMAND

In its December 2011 remand the Board determined that the evidence then of record was sufficient for consideration of an extra-schedular rating, and directed that the matter be referred to the Director of VA's Compensation and Pension Service.  Unfortunately, this was not done.  Stegall v. West, 11 Vet. App. 268 (1998) (providing that remand by the Board confers upon the veteran, as a matter of law, the right to compliance with the Board's remand order).  

VA regulations provide that, in exceptional cases, an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  

The evidence of record at the time of the Board's 2011 remand included multiple statements from the Veteran's present civilian employer and from numerous military buddies (including a military physician); as well as testimony from the Veteran and his wife, and anecdotal remarks in VA treatment records, regarding the noticeable impact that the Veteran's hearing loss has had, and is having, on the Veteran's occupational and social functioning.  It was on the strength of this evidence that the Board first determined that referral for extra-schedular consideration was warranted.

Post remand evidence, which includes a January 2012 VA audiology examiner's opinion the Veteran's hearing impairment may cause functional difficulties in vocations that require localization of sound as well as verbal communication when face to face communication is not possible, only furthers the Board's resolve.  According to the 2012 examiner, while the Veteran's hearing loss should not preclude his ability to function in physical and sedentary occupations, it could impair his ability to communicate effectively with those around him.  He explained that the Veteran's hearing loss is such that he has difficulty understanding speech without the use of an amplification device and, even with the use of hearing aids, may require visual information obtained from a speaker's face for improved understanding.  The examiner added that the Veteran's current hearing impairment would create a difficult work situation if he were in a position of communicating with the general public in a noisy work environment, or in a situation where he was required to communicate over a radio, telephone, or intercom system for large portions of the day.  

In April 2013 the Veteran's representative argued that the facts of this Veteran's case necessitate consideration of whether an extra-schedular rating is warranted, and the Board agrees.  Accordingly, and as the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the issue of an extra-schedular rating is again remanded for referral to the VA Chief Benefits Director or the Director of the VA Compensation and Pension Service for consideration of whether an assignment of an extraschedular evaluation is warranted.  Stegall, 11 Vet. App. 268.  On remand a request should first be made for any extant VA treatment records.  See Bell v. Derwinski, 2 Vet. App. 611 (1992) (providing that VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body).  

Accordingly, the case is REMANDED for the following action:

1.  Associate, with the claims file, VA medical records pertaining to the Veteran dating from November 2011.  The Veteran reports that all treatment is received at the Pensacola VAMC.

Any other pertinent records identified by the Veteran during the course of the remand should also be obtained and associated with the claims file, following the receipt of any necessary authorizations from the Veteran.  

2.  After associating all outstanding treatment records with the claims file, refer the issue of entitlement to an extra-schedular evaluation for bilateral hearing loss to the VA Chief Benefits Director, or to the Director of the VA Compensation and Pension Service for consideration as to whether the facts in this Veteran's case substantiate the assignment of an extra-schedular rating.  The ensuing response must be associated with the claims file. 

3.  Then, adjudicate entitlement to an extra-schedular rating for bilateral hearing loss.  If the benefit remains denied, furnish the Veteran and his representative a Supplemental Statement of the Case and afford a reasonable opportunity for response.  Then, return the case to the Board for appellate review, if appropriate.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).


______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs