Citation Nr: 1317991 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 12-05 813 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE 1. Entitlement to an initial evaluation in excess of 10 percent for service-connected hearing loss disability, prior to March 19, 2013. 2. Entitlement to an initial evaluation in excess of 10 percent for service-connected hearing loss disability, from March 19, 2013. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran had active service from April 1953 to January 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Denver, Colorado, Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2010, the RO granted service connection for hearing loss disability, and assigned a 10 percent evaluation for that disability. The RO continued to evaluate hearing loss as 10 percent disabling after the Veteran disagreed with the initial rating. The Board remanded the claim for an increased initial rating in excess of 10 percent in August 2012, so that the Veteran could be afforded a requested hearing before the Board. The Board notes that, in January 2012, the RO proposed to reduce the initial disability rating for hearing loss to noncompensable. The Veteran disagreed with that proposal, and the RO thereafter issued a June 2012 supplemental statement of the case (SSOC) which continued the initial rating as 10 percent disabling. The record before the Board, including the electronic record (Virtual VA) reflect no further action on the proposal to reduce the rating, and reflect continuation of the 10 percent rating. Therefore, no issue regarding a proposed rating reduction is before the Board. The Veteran requested a Videoconference hearing before the Board. The requested hearing was conducted by the undersigned Veterans Law Judge in February 2013. Following the hearing, the Veteran submitted an additional audiology report conducted by VA in March 2013. In view of the nature of this March 2013 record, and for the reasons set forth in the Remand section below consistent with Hart v. Mansfield, 21 Vet. App. 505 (2007) (explaining when staged ratings are appropriate), the Board has characterized the Veteran's claim into two issues as a staged rating, as styled on the front page of this document. The Veteran also appointed a representative. The representative appointed after the hearing has submitted an Informal Hearing Presentation on the Veteran's behalf. The Veteran has waived review of the March 2013 audiology report by the agency of original jurisdiction. 38 C.F.R. § 20.1304 (2012). The issue of entitlement to an initial evaluation for in excess of 10 percent for service-connected hearing loss disability, from March 19, 2013, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. 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. The Veteran's January 2010 audiometric test shows the Veteran had level IV for the right ear combined with a level III for the left ear. 2. The Veteran's January 2012 audiometric test shows the Veteran had level I hearing in his right ear and level III hearing in his left ear. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.85 Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that he is entitled to an initial evaluation in excess of 10 percent for hearing loss disability. The duties to assist and notify the Veteran are addressed below, before assessing the merits of the appeal. VA's duties to the claimant The Veterans Claims Assistance Act of 2000 (VCAA) specifies VA's duties 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, 3.326(a) (2012). Under the VCAA, VA has a duty to inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The claimant is also entitled to notice of the criteria for assigning a disability rating and for assigning an effective date for an increased rating. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, the Veteran has submitted an appeal following the initial grant of service connection by an April 2010 rating decision. As the initial claim for service connection has been substantiated, the notice required to meet the duty to assist is considered satisfied. The Veteran does not allege that he has been prejudiced by any lack of notice. No defect in notice is apparent from the record. Next, VA has a duty to assist the Veteran in the development of a claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records have been obtained. The report of a private audiologic examination conducted in March 2012 has been submitted. VA examinations have been conducted. The Veteran contended that the 2012 VA audiologic examination was inadequate. The Board has reviewed the examination report, which appears thorough and includes all appropriate audiometric testing as required under the applicable VA regulations. See 38 C.F.R. § 4.85. The Veteran has submitted evidence and argument on his own behalf. As noted in the Introduction above, the Veteran requested and was afforded a Board hearing that was conducted before the undersigned by Videoconference in February 2013. The Veteran has not identified any additional evidence required to adjudicate the claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Rating - Laws and Regulations Disability evaluations are determined by application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, and for the reasons set forth in the remand section below, the Board has determined that for the period from March 19, 2013, additional development as a separate stage is required to fully and fairly determine whether a rating in excess of 10 percent may be assigned. It is the responsibility of the rating specialist to interpret 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 present. 38 C.F.R. § 4.2. Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses are prohibited. 38 C.F.R. § 4.14. When there is a question as to which of two ratings to apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3. The Veteran's service-connected bilateral hearing loss currently is rated pursuant to 38 C.F.R. §§ 4.85 and 4.86, Diagnostic Code 6100 (2012). Pursuant to these regulations, hearing acuity is measured by the results of speech discrimination tests and pure tone audiometry tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85(a). Examinations are conducted without the use of hearing aids. Id. The rating schedule establishes eleven auditory acuity levels to evaluate the degree of disability for service-connected hearing loss based on the examination results, ranging from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. §§ 4.85(b), 4.85(c). Disability percentage ratings for hearing impairment are derived by a mechanical application of the rating schedule to the auditory acuity level assigned to each ear. See Bruce v. West, 11 Vet. App. 405, 409 (1998). In addition, 38 C.F.R. § 4.86 specifies two exceptional patterns of hearing impairment. The first exceptional pattern exists when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In this circumstance, the rating specialist must determine the auditory acuity level for each ear from either Table VI or Table VIa, whichever results in the higher level. Id. The second exceptional pattern exists when the pure tone threshold is 30 decibels or less at 1000 Hertz (Hz) and 70 decibels (dB) or more at 2000 Hz. 38 C.F.R. § 4.86(b). If this pattern is found, the auditory acuity level for each ear will be selected from either Table VI or Table VIa, whichever results in the higher level. Id. The assigned level then will be elevated to the next higher level. Id. Claim for higher evaluation for hearing loss prior to March 19, 2013 The Veteran seeks a higher rating for his service-connected bilateral hearing loss on the basis that the assigned 10 percent rating does not adequately reflect the severity thereof. Historically, the Veteran was granted service connection for bilateral hearing loss in an April 2010 rating decision and awarded a 10 percent disability rating, effective January 2010. The Veteran underwent a VA examination in January 2010. Audiogram findings, in pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 45 40 65 65 54 LEFT 50 50 65 70 59 The speech recognition score on the Maryland CNC word list was 76 percent for the right ear and 88 percent for the left ear. The assigned diagnosis was sensorineural hearing loss. Applying the above results to the Table VI chart, a puretone threshold average of 54 and a speech discrimination score of 76 percent in the right ear will result in level IV hearing for that ear. A puretone threshold average of 59 and a speech discrimination score of 88 percent in the left ear will result in level III hearing for that ear. Applying these results to the Table VII chart, a level IV for the right ear combined with a level III for the left ear will result in a 10 percent rating. In March 2011, the Veteran disagreed with the assigned rating. In particular, he stated that his inability to hear female voices led him to terminate his career as a teacher in 2007. He submitted a private examination report which disclosed puretone thresholds similar to the hearing acuity disclosed in 2010; word recognition scores slightly higher than on the VA examination. The Veteran underwent a VA examination in January 2012. Audiogram findings, in pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 40 50 65 65 55 LEFT 50 55 65 70 60 The speech recognition score on the Maryland CNC word list was 90 percent for the right ear and 88 percent for the left ear. Diagnosis was sensorineural hearing loss. Applying the above results to the Table VI chart, a puretone threshold average of 55 and a speech discrimination score of 90 percent in the right ear will result in level I hearing for that ear. A puretone threshold average of 60 and a speech discrimination score of 88 percent in the left ear will result in level III hearing for that ear. Applying these results to the Table VII chart, a level I for the right ear combined with a level III for the left ear will result in a noncompensable rating. The RO proposed to reduce the Veteran's initial evaluation for hearing loss, and the Veteran was advised of this proposal in February 2012. Also in February 2012, the RO issued a statement of the case (SOC) which addressed the Veteran's disagreement with the 10 percent evaluation, and the Veteran submitted a substantive appeal. In the February 2012 substantive appeal, the Veteran asserted that the January 2012 audiolgical examination was cursory, and he disputed the findings. The Board reiterates that it has reviewed the examination report, which is complete and includes all appropriate audiometric testing as required under the applicable VA regulations. See 38 C.F.R. § 4.85. The Veteran has not articulated a persuasive argument explaining why the 2012 audiolgical examination was inadequate in view of the detail the examination report provided, which was undertaken in compliance with VA laws and regulations. February 2012 VA outpatient treatment records reflect that the Veteran obtained hearing aids. In July 2012, the Veteran's hearing aids were paired with his telephone and linked to his television. The hearing aid on the left ear was turned up. The Veteran submitted a report of private audiometric examination conducted in March 2012. The report reflects that the Veteran's word recognition scores were poor. Applying the above results to the Table VI chart, a puretone threshold average of 53 and a speech discrimination score of 72 percent in the right ear will result in level V hearing for that ear. A puretone threshold average of 55 and a speech discrimination score of 80 percent in the left ear will result in level IV hearing for that ear. Applying these results to the Table VII chart, a level V for the right ear combined with a level IV for the left ear will result in a 10 percent rating. In light of the results showing hearing acuity and word recognition warranting a 10 percent evaluation in two of three VA examinations, and slightly better hearing at one other VA examination, a 10 percent evaluation is warranted. However, no higher evaluation is warranted. In particular, the private March 2012 examination that disclosed "poor" word recognition scores did not state those word recognition scores in a numerical summary nor does it appear that testing was conducted on the Maryland CNC scale. As noted above, only word recognition scores obtained using the Maryland CNC test may be used by VA in evaluating hearing loss disability under the VA Rating Schedule. Therefore, that report is not adequate to warrant an evaluation in excess of 10 percent for the Veteran's hearing loss disability. There is no other evidence found within the claims file that would support a rating higher than 10 percent prior to March 19, 2013. The Board has considered the Veteran's written assertions and Board hearing testimony, and sympathizes with the Veteran's contention that his diminished hearing led him to leave his employment. However, the Veteran left his employment before he sought service connection for hearing loss, so the Board cannot consider that evidence in assigning the initial rating for the disability. Consideration of referral for extraschedular evaluation prior to March 19, 2013 The Board must next consider whether the functional loss presented by the Veteran's hearing impairments in daily life warrants referral for extraschedular consideration. The Board cannot make a determination as to an extraschedular evaluation in the first instance, but must address the matter of referral of a disability to appropriate VA officials for such consideration. The Court has 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." Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The VA examiners did not discuss the Veteran's functional loss in detail, but the VA outpatient audiology treatment records reflect that functional capacity to use the telephone and to hear the television was addressed during treatment. There is no record that the Veteran reported functional difficulty with female voices to his treating VA providers or at the time of private audiologic examinations in 2011 or 2012. The only notation of this difficulty is in the Veteran's March 2011 notice of disagreement. The Veteran described his functional loss at his February 2013 Videoconference before the Board. At that time, the Veteran stated that, with his hearing aids, he was "dead in the water" without his hearing aids, but that the hearing aids worked well "except in large situations," such as a political convention with a large group of people in a large venue. The Board finds that the Veteran's current functional effects of his hearing loss disability are not encompassed within the rating schedule. The Board notes the Veteran's contention in his March 2011 notice of disagreement that he had particular difficulty distinguishing female voices. There is no report in the VA outpatient treatment records after March 2011, or in the Veteran's hearing testimony, that the hearing aids do not assist the Veteran to alleviate this problem. The Board concludes that the Veteran's functional loss as to female voices is addressed with the hearing aids. In Thun v. Peake, 22 Vet. App. 111 (2008), the Court of Appeals for Veterans Claims set forth a three-step analysis the Board must follow in determining whether referral for an extraschedular disability rating is warranted. The Court held that, 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 (step one in the Thun analysis). 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. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009) (affirming Thun v. Peake, 22 Vet. App. 111, and the analysis therein). Difficulty communicating in a crowd in a large room is not specifically addressed in the schedular criteria, except to the extent that diminished hearing may logically be expected to cause difficulty hearing in a variety of situations. If the Board proceeds to step two in the Thun analysis, the Board must determine whether the appellant's "exceptional" disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." 22 Vet. App. at 116. The Board acknowledges that functional loss associated with difficulty hearing conversation in a crowd could impair the Veteran in certain occupations. The Veteran's contention that this difficulty hearing in a crowd, in a large room, is credible, and the Veteran's contention that the difficulty hearing interferes with participation in political conventions is credible. However, the Board finds that this functional loss is not of such type or severity that it is equivalent to "marked" interference with employment, and is not equivalent to hospitalization. The Board finds that this functional loss is not of such severity as to render impractical the application of regular schedular standards, and does not meet the criteria for referral for extraschedular evaluation provided in the applicable regulation. Therefore, the analysis ends at step two, and consideration of the third prong set forth in the Thun analysis -to determine whether, to accord justice, an extraschedular rating must be assigned - is not required. The Board finds that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. As the preponderance of the evidence is against this claim, the benefit of the doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1991). The claim for a rating in excess of 10 percent for bilateral hearing loss, prior to March 19, 2013, is denied. ORDER The appeal for initial evaluation in excess of 10 percent for service-connected hearing loss disability, prior to March 19, 2013, is denied. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the readjudication of his claim of entitlement to a compensable initial rating for left ear hearing loss. In March 2013, the Veteran underwent VA audiological examination. That examination disclosed the following: HERTZ 1000 2000 3000 4000 AVG RIGHT 45 40 60 65 53 LEFT 40 45 65 70 55 However, the speech recognition scores were identified as conducted based on the CID W22 test rather than the Maryland CNC as required under 38 C.F.R. § 4.85(a). As such, this March 2013 VA audiological examination is inadequate for rating purposes. The Board notes that while the March 2012 private examination that did not utilize the Maryland CNC scale may be discarded, VA has an obligation to conduct its examinations in conformance with its own regulations. An examination improperly conducted may be prejudicial to the claimant. To remedy any potential prejudice, reexamination is required is this case to fully and fairly evaluate whether the Veteran may be entitled to an evaluation in excess of 10 percent since March 19, 2013 (the date of the inadequate VA audiological examination). Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA audiological treatment records since March 19, 2013. 2. Thereafter, the Veteran should be scheduled for a VA audiological examination in order to determine the current severity of his service-connected hearing loss. The claims folder must be made available to the examiner for review in connection with the examination. The examination report must reflect that such a review was conducted. All indicated studies, to include appropriate audiometric testing, should be completed in conformance with VA regulations, including testing under the Maryland CNC. 3. After completing the above actions and any other development that may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim of entitlement to an initial rating for hearing loss in excess of 10 percent since March 19, 2013, should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2012). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs