Citation Nr: 1318340	
Decision Date: 06/05/13    Archive Date: 06/11/13

DOCKET NO.  06-39 616	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to an initial compensable rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. Young, Counsel


INTRODUCTION

The Veteran served on active duty from November 1969 to August 1973.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  

In February 2011, the Veteran testified before the undersigned during a Board hearing held in Washington, D.C.  A transcript of the hearing is of record.  In February 2012 the Board remanded the matter of entitlement to a compensable rating for right ear hearing loss for additional development.  In March 2013 the Board granted service connection for left ear hearing loss and remanded the matter of bilateral hearing loss for additional development.  Pursuant to the March 2013 Board decision, the RO issued a rating decision in April 2013 implementing that decision thereby merging the Veteran's hearing loss claims and assigning a noncompensable evaluation and effective date for bilateral hearing loss.

The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder."  The Board's review discloses that the few electronic records since November 2012 found only in the "eFolder" and not reviewed by the December 2012 or April 2013 Supplemental Statements of the Case are not pertinent to resolution of the issue now on appeal.  Therefore, there is no prejudice to the Veteran in proceeding to adjudication of his claim.  See 38 C.F.R. § 20.1304(c) (2012).  A waiver of RO consideration was submitted by the Veteran in December 2012 and by his representative in January 2013.


FINDING OF FACT

The preponderance of audiological evaluations show hearing impairment no worse than Level I in both ears.


CONCLUSION OF LAW

The criteria for an initial compensable evaluation for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 & 3.326(a) (2012).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

Regarding right ear hearing loss, the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award.  Regarding left ear hearing loss, the March 2013 Board decision granted service connection.  The RO implemented the Board's decision and assigned a disability rating and effective date for the award.  However, upon the grant of service connection for left ear hearing loss, the RO evaluated the claims as bilateral hearing loss and assigned a noncompensable evaluation effective from January 13, 2004 (the date of the initial claim for hearing loss).  As such statutory notice had served its purpose (for bilateral hearing loss), and its application was no longer required.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed.  Cir. 2007).  A March 2006 letter, (issued subsequent to the initial grant of service connection), provided notice on the "downstream" issues of disability ratings and effective dates and made the Veteran aware of extraschedular evaluations.  38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006).  Defects as to the timeliness of the statutory and regulatory notice are rendered moot because the Veteran's claim on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  The Veteran has had ample opportunity to respond/supplement the record.  He has not alleged that notice in this case was less than adequate.  See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) ("where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues").  

Additionally, VA has a duty to assist a Veteran in the development of his claim.  This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  Here, the Veteran's service treatment records (STRs) have been obtained and associated with the claims folder.  Also, his VA and private treatment records (including those associated with his Virtual VA/eFolder) have been reviewed; he has not otherwise reported additional treatment for his service-connected bilateral hearing loss.  He was afforded VA audiological examinations in June 2004 and February 2012, the reports of which are of record.  The Board finds that the 2012 examination obtained in this case in particular is adequate for rating purposes.  Specifically, the examination report contains sufficient evidence by which to evaluate the Veteran's claim in the context of the rating criteria.  Furthermore, the February 2012 VA examiner elicited information from the Veteran concerning the functional effects of his hearing loss disability.  Martinak v. Nicholson, 21 Vet. App. 447 (2007).

In March 2013, the Board granted service connection for left ear hearing loss and remanded essentially the issue of a compensable rating for bilateral hearing loss to determine its nature and severity.  The Board directed the RO to perform any necessary development with regard to the claim for a higher rating for right ear hearing loss, including scheduling an examination if the RO deemed it necessary.  In April 2013 the RO notified the Veteran that the VA medical facility nearest him was asked to schedule him for an examination in connection with his claim.  That same month, the RO issued a supplemental statement of the case and therein informed the Veteran that the April 2013 notice was sent in error, essentially informing him that a VA examination was not necessary.  The Veteran's representative argues that in failing to schedule the Veteran for a VA examination, the RO has not complied with the Board's remand orders and the matter should again be remanded to schedule an examination.  The Board disagrees.  The Board's March 2013 remand orders allowed the RO the discretion to afford the Veteran another examination if it deemed necessary.  In readjudicating the claim, the RO determined that the evidence already contained in the Veteran's file was sufficient to adjudicate his claim, particularly the recent February 2012 VA examination.  The Board finds that the record reflects substantial compliance with the Board's Remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  As noted above, an adequate audiological examination was developed in February 2012.  In addition, the record contains VA audiology outpatient treatment records dated from October 2008 to April 2012 (reviewed in Veteran's eFolder).  

Otherwise, the Veteran and his representative have submitted arguments in support of the Veteran's claim.  Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the appeal that has not been obtained.  Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of this initial rating claim.

Legal Criteria, Factual Background and Analysis

Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012).  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.

The Veteran's entire history is reviewed when making disability evaluations.  See generally 38 C.F.R. § 4.1 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where, as here, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection, and consideration of the appropriateness of staged ratings are required.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  The assigned evaluation for hearing loss is determined by mechanically applying the rating criteria to certified test results.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examinations.  Evaluations of hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz.  The rating criteria establish eleven auditory acuity levels designated from I to XI.  As set forth in the regulations, Tables VI, VIa, and VII are used to calculate the rating to be assigned.  See 38 C.F.R. § 4.85 (Diagnostic Code 6100).

Additionally, the regulations allow for evaluating exceptional patterns of hearing impairment.  When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, 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, Table VI or Table VIa is to be used, whichever results in the higher numeral.  Thereafter, that numeral will be elevated to the next higher numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(b).  In view of the audiometric results detailed below, these provisions for exceptional patterns of hearing impairment are not applicable during any period of the claims process.

The Board notes that all of the evidence in the Veteran's claims file and in Virtual VA with an emphasis on the evidence relevant to this appeal, has been reviewed.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence as appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

A VA audiological evaluation was afforded to the Veteran in June 2004 in response to his claim for service connection for hearing loss due to military noise exposure while on active duty and working as a plane captain and aviation electrician on flight lines repairing helicopters.  On audiological evaluation, speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 percent in the left ear-as well as puretone thresholds, in decibels, as follows:




HERTZ



1000
2000
3000
4000
AVG.
RIGHT
25
50
65
70
53
LEFT
10
35
60
55
40

The Veteran was diagnosed with sensorineural hearing loss (SNHL), bilaterally.  

Based on the above results with the utilization of Table VI, the June 2004 VA audiology report shows the Veteran had, at most, Level I hearing impairment in the right ear and Level I hearing impairment in the left ear.  Applying the results to Table VII, a noncompensable rating would be warranted for bilateral hearing loss based on the June 2004 VA audiological examination and evaluation results.  See 38 C.F.R. § 4.85 (Diagnostic Code 6100).  These audiological results do not warrant a compensable rating based on exceptional hearing loss patterns.  38 C.F.R. § 4.86.  

A December 2010 VA audiology outpatient report noted that the Veteran presented at the clinic for a hearing evaluation with complaints of decreased hearing since his last evaluation in October 2008; he denied any change in his medical history.  It was noted that he wears hearing aids.  Test results revealed normal left hearing sensitivity from 250 to 1K, with mild to severe SNHL from 1.5-8 kHz.  His word recognition score was excellent on the left at 96 percent and fair on the right at 72 percent.  Thresholds in the left ear were stable from the previous audiogram, but the right ear had decreased 10-15 decibels.  Word recognition scores were stable in the left ear, but reduced from 96 percent to 72 percent in the right ear.  It was noted that based on the configuration/degree of hearing loss it was likely that his current [hearing aids] were not providing enough amplification.  New ear molds were ordered and it was recommended that he follow-up for refitting and hearing aids readjustment.  There were no other symptoms consistent with retrocochlear pathology at that time.

On February 2012 VA otolaryngology examination, the Veteran reported that his hearing loss impairs his ability to communicate, to hear music, and television.  He stated that he benefits from bilateral hearing aids but still depend on reading lips to enhance his understanding.  He communicates fairly well in quiet settings with one-on-one conversations but has more difficulty in crowds and noisy environments.  His hearing loss does not directly affect his mechanical ability to work on aircraft, but also he is retired medically from this job with the federal government (building and maintenance of military aviation equipment) due to his diagnoses of non-Hodgkins lymphoma, peripheral neuropathy and imbalance.  It was noted that he would have had even more difficulty communicating (in such noisy work environment) if he were still employed. 

In February 2012 the Veteran was afforded a VA audiological examination after he indicated at his hearing that his hearing had worsened since his last VA examination (in 2004).  On audiological examination, speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 98 in the left ear.  In addition, puretone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
AVG.
RIGHT
25
45
65
75
52
LEFT
15
45
65
65
48

Based on the above results with the utilization of Table VI, the February 2012 VA audiology report shows that the Veteran had, at most, Level I hearing impairment in the right ear and Level I hearing impairment in the left ear.  Applying the results to Table VII, a noncompensable rating would be warranted for bilateral hearing loss based on the February 2012 VA audiological examination and evaluation results.  See 38 C.F.R. § 4.85 (Diagnostic Code 6100).  Nor do these audiological results warrant a compensable rating based on exceptional hearing loss patterns.  38 C.F.R. § 4.86.  

The diagnosis was SNHL, bilaterally.  The examiner noted that the Veteran's hearing loss impacts the ordinary conditions of daily life.  The Veteran reported problems understanding speech of co-workers in the past but currently he is no longer employed; he is retired due to medical disabilities.

After a review of all the evidence in this case, the Board finds that the weight of the evidence equates to a noncompensable evaluation for hearing loss throughout the appeal period.  38 C.F.R. § 4.85, Diagnostic Code 6100.  The Board bases this conclusion on the fact that there are two VA examinations/evaluations which are relatively consistent with each other and which show a noncompensable level of hearing loss.  Significantly, the February 2012 VA audiology examination was developed after the December 2010 VA audiology outpatient record, which shows a reduction in the Veteran's word recognition score from 96 percent to 72 percent in the right ear.  

As the December 2010 audiologist attributed this hearing loss/decrease in word recognition score to problems with hearing aid amplification, and as the word recognition score improved following the ordering of new ear molds and refitting and hearing aid readjustment, the Board does not find that a compensable rating for hearing loss is warranted for any period during the appeal.  Further, left ear hearing was noted to be stable in December 2010 from previous audiogram, and right ear hearing loss was only noted to have decreased by 10 or 15 decibels.  Significantly, increased disability was not shown in the subsequent February 2012 VA audiology examination report.  

Finally, in Martinak, 21 Vet. App. 447, the United States 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 impairment disability on occupational functioning and daily activities.  See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dept of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2011).  The Court also noted, however, that, even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  In this case, the 2012 VA examiner noted that the Veteran will have difficulty hearing in crowds and noisy environments.  The Veteran reported that his hearing loss impairs his ability to communicate, to hear music, and television.  The 2012 otolaryngology examiner noted that the Veteran would have more difficulty communicating in the "noisy environment" surrounding mechanical aircraft repair.  Thus, the Veteran's 2012 VA examination complied with Martinak.  See Martinak, 21 Vet. App. 447.

The Board acknowledges the Veteran's contentions regarding the impact of his hearing loss on his daily activities, and VA's obligation to resolve all reasonable doubt in his favor.  However, as noted previously, because assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluation to assign with respect to the rating criteria.  Lendenmann, 3 Vet. App. 345; 38 C.F.R. § 4.85, Tables VI, VIA, and VII, Diagnostic Code 6100.  

The preponderance of the evidence is against a finding that a higher rating is warranted based on the effect of the Veteran's hearing loss on his occupational functioning and daily activities, as the otolaryngology examiner found that the Veteran communicates fairly well in quiet settings with one-on-one conversations.  Further, and perhaps most significantly, that examiner concluded that his hearing loss does not directly affect his profession, his mechanical ability to work on aircraft.  As noted above, the Veteran retired due to medical conditions unrelated to his hearing loss.  The Veteran has been issued appropriate amplification (hearing aids) from VA.  As there is a preponderance of the evidence against a compensable rating for bilateral hearing loss disability, there is no reasonable doubt to be resolved.

Consideration has also been given to whether the schedular rating is inadequate, requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extra-schedular evaluation.  Such a referral is warranted where a service-connected disability presents an exceptional or unusual disability picture that renders impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1).

An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 115-116.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required.  Id. at 116.

The schedular rating in this case is adequate.  There is no showing that the Veteran's service-connected bilateral hearing loss is so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis.  38 C.F.R. § 3.321(b)(1).  The symptoms of this disability, namely difficultly hearing, have been accurately reflected by the schedular criteria.  Furthermore, as noted above, the 2012 VA examiner addressed the impact of the Veteran's hearing loss on his unemployability and found that his hearing loss does not directly affect his mechanical ability to work on aircraft, but noted that he is retired medically from his job due to his diagnoses of non-Hodgkins lymphoma, peripheral neuropathy and imbalance.  The examiners ( 2012 otolaryngology and audiology) elicited information from the Veteran concerning the functional effects of his hearing loss.  Martinak, 21 Vet. App. 447.  The Board has considered the Veteran's contentions regarding the effects his hearing loss has on his daily life.  Here, while the Veteran's bilateral hearing loss can cause communication problems in some situations (crowds and noisy environments), there is no indication that the Veteran's disability picture rises to the level of so exceptional or unusual that an extraschedular rating is warranted.

Therefore, without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted.  Thun, 22 Vet. App. at 115-16; 38 C.F.R. § 3.321(b)(1).

Also, the record does not show, nor has the Veteran contended, that he is unemployable as a result of his service-connected bilateral hearing loss.  In fact, the Veteran has stated that he retired from his job with the federal government due to his diagnoses of non-Hodgkins lymphoma, peripheral neuropathy and imbalance.  Thus, a claim for a total disability rating based on individual unemployability due to service-connected disability is not raised by the Veteran or the record and need not be discussed further.  Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).



ORDER

A compensable rating for bilateral hearing loss is denied.




____________________________________________
M.C. GRAHAM
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs