Citation Nr: 1318259	
Decision Date: 06/05/13    Archive Date: 06/11/13

DOCKET NO.  11-30 699	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to a compensable rating for the service-connected left ear hearing loss.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

L. B. Cryan, Counsel


INTRODUCTION

The Veteran served on active duty from September 1953 to June 1954.

This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  The RO denied entitlement to an increased (compensable) disability rating for the service-connected left ear hearing loss due to infection (to include residual of ear infection for ear drum surgery).  

On the Veteran's November 2011 VA Form 9, substantive appeal to the Board, he requested to appear for a Board hearing at the RO; however, he later withdrew that request in November 2012 correspondence to the RO.

In November 2012, the Veteran testified at a personal hearing before a Decision Review Officer (DRO) at the RO.  A transcript of his testimony is associated with the claims file.  

Significantly, when the Veteran submitted this claim for increase to the RO in September 2010, he very clearly stated that he also wished to claim [service connection for] a new condition of residuals of ear infection to include ear drum surgery.  In other words, the Veteran was asserting that he had additional residuals other than left ear hearing loss that resulted from the in-service chronic ear infections and subsequent post-service ear drum surgery.  

In response, the RO subsequently issued duty-to-assist letters to the Veteran in September 2010 and October 2010 that specifically indicated that they were working on two separate claims:  (1) left ear hearing loss; and, (2) residuals of ear infection to include ear drum surgery.  Inexplicably, however, the RO only adjudicated the claim for an increased (compensable) rating for the service-connected left ear hearing loss and recharacterized the issue as left ear hearing loss due to infection (to include residual of ear infection for ear drum surgery).  In other words, the RO apparently determined, without any explanation or medical evidence to support the determination, that the only residual of in-service ear infections which led to ear drum surgery was that of hearing loss.  However, the Veteran has mentioned symptoms and/or manifestations other than hearing loss which may be considered a residual of ear infection and ear drum surgery, including, but not limited to tinnitus, a runny discharge, ear pain, and even the possibility of additional ear infections in the future.  See VA examinations dated in March 2007, October 2010 and December 2012; November 2012 DRO hearing transcript.  Moreover, the Veteran has a diagnosis of tinnitus and there is a nexus opinion linking the Veteran's tinnitus to his service-connected ear infections.  Given that the Veteran specifically submitted a claim for residuals of chronic ear infections and ear drum surgery while also claiming an increased rating for the service-connected hearing loss, it is clear that the Veteran intended to establish service connection for disability(ies) other than hearing loss; yet, the RO never followed up on an adjudication of this claim even though the September and October 2010 duty-to-assist letters suggested that the RO was treating the claim for an increased rating for the left ear hearing loss separately from the additional service connection claim(s).

In light of the foregoing, the issue of entitlement to service connection for residuals of ear infection and ear drum surgery other than hearing loss, which may include, but is not limited to, chronic otitis externa, chronic otitis media (suppurative and nonsuppurative), mastoiditis, tympanic membrane perforation, and tinnitus, has been raised by the record, but 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.  

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).


FINDING OF FACT

Throughout the period of the appeal, the Veteran's numeric designation of hearing impairment based on pure tone threshold average and speech discrimination scores (Table VI) and/or based on pure tone threshold average only (Table VIa) is no worse than Level VII hearing in the left ear and no worse than Level I hearing in the right ear.  


CONCLUSION OF LAW

The criteria for a compensable disability rating for the service-connected left ear hearing loss disability have not been met during any time period covered by this claim.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.85, Tables VI, VIA, VII, Diagnostic Code 6100, 4.86 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duty to Notify and Assist

Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a).  The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  The notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App.112 (2004).  The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).  

Here, the Veteran filed his claim for a higher (compensable disability rating for the service-connected left ear hearing loss in September 2010.  That same month, the RO issued a duty-to-assist letter to the Veteran that provided the Veteran with notice of how to substantiate a claim for an increased rating.  The letter explained that the Veteran needed to show that his service-connected left ear hearing loss had worsened in severity.  The letter also listed examples of the types of evidence that may show this, such as doctor's statements showing physical and clinical findings, laboratory test results and lay statements from individuals who are able to describe personal observations of how the disability has worsened.  The Veteran was notified of what evidence VA would obtain on behalf of the Veteran and what evidence the Veteran should provide.  

Also, the letter specifically notified the Veteran about the assignment of disability ratings and effective dates for all grants of service connection.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006).

With regard to assistance in the development of the Veteran's claim, the RO attempted to obtain the Veteran's service records at the time of the Veteran's original claim of service connection for hearing loss in 2006; however, a July 2006 memorandum indicates that the RO made a formal finding on the unavailability of the Veteran's service medical records.  Subsequent to that finding, the RO attempted to locate other records from other federal sources pertaining to the Veteran's unit and duty station, and from the base hospital where he was treated, but all attempts to obtain these records were unsuccessful.  Nevertheless, a VA examiner concluded that the Veteran's hearing loss was conductive in part, and provided the necessary nexus opinion to grant the claim of service connection based on the Veteran's competent and credible lay statements.  With regard to the claim for increase at issue currently, VA has assisted the Veteran in attempting to obtain private treatment records identified by the Veteran; however, the Veteran has consistently maintained that he has tried to obtain this evidence himself and has been informed that all pertinent records from the 1970s and earlier have been destroyed and all of those doctors who treated him during that time period are deceased.  Although attempts to obtain these same records were conducted with regard to the original claim of service connection were unsuccessful, the RO nevertheless asked the Veteran if he wanted them to make additional attempts to obtain the private records, but the Veteran indicated that additional attempts would be futile.  

The Veteran was afforded physical examinations in conjunction with the claim for increase, and he was afforded the opportunity to give testimony before the Board.  The medical examination reports of October 2010 and December 2012 are also adequate as they are based on a review of the history, a physical examination, and as information that was provided is sufficient to allow the Board to render an informed determination.  While the examiner in December 2012 noted the claims file had not been provided, this alone does not make the examinations inadequate, as the purpose of the examination was to report the clinical findings pertaining to the service-connected disability, which was accomplished by the examiner.  All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise.  

In light of the above, VA has complied with the duty-to-assist requirements found at 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)-(e). 

II.  Increased Rating

The Veteran maintains that a compensable rating is warranted for his service-connected hearing loss.  He also asserts that he should be compensated for the medical bills incurred and the pain suffered during the 20+ year period of time since discharge when he suffered from chronic ear infections and ear discharge, which ultimately resulted in ear drum surgery in the early 1970's.  The Veteran's left ear hearing has been permanently impaired as a result of the chronic in-service ear infections, and he maintains that he was discharged from service early because of the chronic and persistent ear infections, which continued after service.  The Veteran stated that he first attempted to obtain help from the VA in 1972, but he was turned away because his medical records had been destroyed.  There is a formal finding in the record that the Veteran's service records, medical and personnel, are unavailable because they were destroyed by fire at the St. Louis. National Personnel Records Center.  

The Veteran's original claim of service connection for left ear hearing loss was received at the RO in January 2006.  In a July 2007 rating decision, service connection for left ear hearing loss due to infection was granted with a noncompensable rating assigned effective January 30, 2006.  In September 2010, the Veteran filed a claim for an increased (compensable) rating for the service-connected left ear hearing loss.  

Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity resulting from a disability.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4.

When there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  

It is appropriate to consider whether separate ratings should be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings  Hart v. Mansfield, 21 Vet. App. 505 (2007).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3 (2006).  

The assignment of disability ratings for hearing impairment are derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992); see also Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) (indicating that the criteria for evaluating the degree of impairment resulting from hearing loss under the Rating Schedule, unlike extraschedular consideration under section 3.321(b) of the regulations, rely exclusively on objective test results). 
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 pure tone audiometry test.  Examinations are to be conducted without the use of hearing aids.  To evaluate the degree of disability from defective hearing, the rating schedule establishes 11 auditory acuity levels from Level I, for essentially normal acuity, through Level XI for profound deafness.  These are assigned based on a combination of the percent of speech discrimination and the pure tone threshold average, as contained in a series of tables within the regulations.  The pure tone threshold average is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four.  38 C.F.R. § 4.85.  This average is used in all cases (including those in Sec. 4.86) to determine the Roman numeral designation for hearing impairment where the axes intersect.  Average pure tone decibel loss for each ear is located on Table VI along a horizontal axis, and percent of discrimination is located along a vertical axis.  The results are then matched between the "better" ear and the "poorer" ear on Table VII to produce a disability rating under Code 6100.

If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383 which governs special consideration for paired extremities and paired organs.  Under 38 C.F.R. § 3.383, compensation is payable for the combination for service-connected hearing loss in one ear and non-service-connected hearing loss in the other as if the hearing loss in both ears was service-connected, provided that:  (1) the veteran's non-service-connected hearing loss is not the result of the Veteran's own willful misconduct; and, (2) the hearing impairment in one ear is compensable to a degree of 10 percent or more as a result of service-connected disability; and, hearing impairment as a result of nonservice-connected disability meets the criteria for a hearing loss disability pursuant to 38 C.F.R. § 3.385.  See 38 C.F.R. § 3.383(a) (3).

Additionally, VA recognizes certain exceptional patterns of hearing, pursuant to 38 C.F.R. § 4.86(a).  Specifically, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or higher, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa of 38 C.F.R. § 4.85, whichever results in the higher numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(a).  When the pure tone 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 for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral.  That numeral is then elevated to the next higher Roman numeral.  Again, each ear will be evaluated separately.  38 C.F.R. § 4.86(b).

At a VA audiological examination in October 2010, pure tone thresholds, in decibels, were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
15
30
40
40
LEFT
60
85
85
85

The average in the right ear was 31 and the average in the left ear was 79.  Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 64 percent in the left ear.

These figures, when applied to 38 C.F.R. § 4.85, Table VI, correspond to Level I hearing in the right ear and Level VII hearing in the left ear.  Because the right ear hearing loss is not service-connected, a Level I hearing is assigned to that ear regardless of the pure tone average and the speech recognition scores (unless the left ear hearing loss is independently ratable at least 10 percent).  In this case, application of these levels to Table VII at 38 C.F.R. § 4.85 results in a 0 percent rating.  Incidentally, this is the same result as if service connection for bilateral hearing loss was established, as hearing loss acuity in the right ear pursuant to Tables VI and VII is Level I.  

Importantly, however, the above audiogram findings show an exceptional pattern of hearing loss in the left ear, as defined under 38 C.F.R. § 4.86(a) based on the pure tone thresholds of each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) being 55 decibels or more.  According to 38 C.F.R. § 4.86(a), when the pure tone thresholds in the four specified frequencies are 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.  Each ear is evaluated separately.  As noted above, the Roman numeral designation for left ear hearing impairment under Table VI is VII.  When the figures are applied to 38 C.F.R. § 4.85, Table VIA, the Roman numeral designation for the left ear is also VII.  Thus, the Roman numeral designation for the left ear remains VII, and the Roman numeral designation for the right ear remains I.  Once again, application of these levels (I in the right ear and VII in the left ear) to Table VII at 38 C.F.R. § 4.85 results in a 0 percent rating.  

Regardless of which Table (VI or VIa) is used in this case, the outcome remains the same, and in either case, results in a 0 percent rating.  

At a VA audiological examination in December 2012, pure tone thresholds, in decibels, were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
20
30
35
40
LEFT
60
60
70
70

The average in the right ear was 31 and the average in the left ear was 65.  Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 82 percent in the left ear.

These figures, when applied to 38 C.F.R. § 4.85, Table VI, correspond to Level I hearing in the right ear and Level IV hearing in the left ear.  Because the right ear hearing loss is not service-connected, a Level I hearing is assigned to that ear regardless of the pure tone average and the speech recognition scores (unless the left ear hearing loss is independently ratable at least 10 percent).  In this case, application of these levels to Table VII at 38 C.F.R. § 4.85 results in a 0 percent rating.  Incidentally, this is the same result as if service connection for bilateral hearing loss was established, as hearing loss acuity in the right ear pursuant to Tables VI and VII is Level I.  

Importantly, however, the above audiogram findings show an exceptional pattern of hearing loss in the left ear, as defined under 38 C.F.R. § 4.86(a) based on the pure tone thresholds of each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) being 55 decibels or more.  According to 38 C.F.R. § 4.86(a), when the pure tone thresholds in the four specified frequencies are 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.  Each ear is evaluated separately.  As noted above, the Roman numeral designation for left ear hearing impairment under Table VI is IV.  When the figures are applied to 38 C.F.R. § 4.85, Table VIA, the Roman numeral designation for the left ear is V.  The Roman numeral designation for the right ear remains I.  Once again, application of these levels (I in the right ear and V in the left ear) to Table VII at 38 C.F.R. § 4.85 results in a 0 percent rating.  

Regardless of which Table (VI or VIa) is used in this case, the outcome remains the same, and in either case, results in a 0 percent rating.  

With regard to the effects of the hearing loss on the Veteran's occupational functioning and daily activities, the Veteran reported during the December 2012 examination that he had difficulty understanding conversation.  He also testified that he had difficulty with a woman's voice and trouble understanding with background noise.  His wife reported that people had to talk to his right ear and that he could not hear a telephone conversation but could read lips.   

With respect to the aforementioned hearing, the Court of Appeals for Veterans Claims held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official 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.  Here, the RO official noted the current appellate issue at the beginning of the hearing, and asked questions to clarify the Veteran's contentions and treatment history.  Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing.  

There is no other competent medical evidence of record to compare with the above findings, other than the Veteran's March 2007 VA examination which was conducted in conjunction with his initial claim of service connection for hearing loss.  Those findings revealed a pure tone threshold average of 33 dB in the right ear and a pure tone average of 60 in the left ear.  Speech recognition scores were 100 percent in the right ear and 96 percent in the left ear.  While these findings are somewhat consistent with the 2012 findings, the degree of the hearing loss is quite a bit less severe than what is shown in 2010, and thus, the findings on the March 2007 examination do not serve to support the Veteran's claim for a higher rating.  While the Veteran is certainly competent to describe his hearing loss and his level of functional impairment, which he has described as difficulty understanding conversation, the medical findings on audiogram demonstrate that a compensable rating is not warranted for the service-connected left ear hearing loss at any time during the period covered by this claim.  The Veteran has not reported that his hearing loss has worsened since the December 2012 examination.  

In light of these findings, a compensable rating is not warranted for the service-connected left ear hearing loss at any time during the period of time covered by this claim.  38 C.F.R. § 4.85, Diagnostic Code 6100.  The possibility of staged ratings was considered, however, there are no distinct periods of time where a compensable rating could be assigned based on the evidence of record.  

In reaching this decision, the Veteran's contentions regarding the severity of his hearing loss have been considered.  There is no reason to doubt the credibility of the Veteran and his wife with respect to the fact that he has difficulty hearing.  The findings on examination are consistent with the Veteran's assertions that he has difficulty hearing.  The objective findings on examination, however, do not allow for the assignment of a higher rating in this case.  The Board is bound by the mechanical formula provided by regulation for the assignment of ratings for service-connected hearing loss, and is without authority to grant a higher rating in this case.  The numeric designations in this case correlate to noncompensable rating and no higher.  See 38 C.F.R. § 4.85, Tables VI-VII.

With regard to the claim for back pay as a result of at least 20 years of medical bills and chronic ear infections resulting in the need for a surgical procedure, the Veteran, to some extent, appears to be raising an argument couched in equity.  In essence, the Veteran maintains that it is unfair to deny him compensation for pain, suffering and medical bills that he incurred for years after service.  While sympathetic to the appellant, the Board is nonetheless bound by the law and is without authority to grant benefits on an equitable basis.  See 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board has decided this case based on its application of this law to the pertinent facts. See Owings v. Brown, 8 Vet. App. 17 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171 (1992) [noting that the Court must interpret the law as it exists, and cannot extend benefits out of sympathy for a particular claimant].

The preponderance of the evidence is against the claim for a compensable disability rating for the service-connected hearing loss; thus, the doctrine of reasonable doubt is not for application.  38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3.  

III.  Extra Schedular Consideration

Finally, the potential application of 38 C.F.R. § 3.321(b)(1) has also been considered.  See Thun v. Peake, 22 Vet. App. 111 (2008); Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).  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). 

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.  

Here, the symptomatology and impairment caused by the Veteran's service-connected left ear hearing loss are contemplated by the rating criteria for hearing loss.  There is no symptom or manifestation stemming from the hearing loss that is not currently considered in the rating criteria for rating the hearing loss.  As noted above, the Veteran has described other manifestation of the ears other than hearing loss, and has filed a claim in that regard that has yet to be adjudicated by the RO.  With regard to the hearing loss, however, that symptom has been considered based on all available rating criteria pertinent to hearing loss.  In this case, comparing the Veteran's disability level and symptomatology of the hearing loss alone, to the rating schedule, the degree of disability throughout the entire appeal period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate.  In the absence of exceptional factors associated with the hearing loss, the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met.  As such, referral for consideration for an extraschedular evaluation is not warranted here.  See 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008); Bagwell v. Brown, 8 Vet. App. 337, 339 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).  

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ORDER

An increased (compensable) disability rating for the service-connected left ear hearing loss is denied.  



____________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs