Citation Nr: 1318341	
Decision Date: 06/05/13    Archive Date: 06/11/13

DOCKET NO.  05-18 591	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Entitlement to an increased evaluation for bilateral hearing loss, currently evaluated as noncompensable prior to April 4, 2007, and as 10 percent disabling from April 4, 2007.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Davitian, Counsel


INTRODUCTION

The Veteran served on active duty from July 1964 to December 1968.

This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  The rating decision continued a noncompensable evaluation for bilateral high frequency hearing loss.  

In a July 2007 decision, a Decision Review Officer (DRO) assigned a 10 percent disability rating for bilateral high frequency hearing loss, effective April 4, 2007.  

When this case was previously before the Board in November 2007 and January 2013, it was remanded for additional development.  The case is now before the Board for final appellate consideration.

In a March 2010 statement of the case (SOC), and in supplemental statements of the case (SSOCs) dated in January 2010, June 2011 and April 2012, the RO addressed the issue of entitlement to an earlier effective date for the assignment of the 10 percent rating for the bilateral hearing loss disability.  However, because the Veteran's appeal originated from the May 2004 rating decision that denied a compensable evaluation, he is actually appealing the original denial of an increased evaluation.  Thus, the claim actually involves the propriety of the disability rating assigned during the entire appeal period.  See Hart v. Mansfield, 21 Vet. App. 505 (2007) (finding staged ratings appropriate also in cases where the appeal was not as to the initial rating assigned after service connection is established). 

The Veteran's rating was increased during the course of the appeal; however, the claim for a higher rating for bilateral hearing loss remains before the Board because the staged ratings assigned for the periods remain less that the maximum available benefit awardable for each period.  See AB v. Brown, 6 Vet. App. 35 (1993).  Thus, the issue on appeal does not include the question of entitlement to an earlier effective date for the rating assigned subsequent to the rating action on appeal.  The claim is as noted on the title page.  


FINDINGS OF FACT

1.  The competent medical evidence of record demonstrates that, prior to April 4, 2007, the Veteran had level I hearing acuity in his right ear, and levels VII and VIII hearing acuity in his left ear.

2.  The competent medical evidence of record demonstrates that, since April 4, 2007, the Veteran has had level I hearing acuity in his right ear, and levels V, IX, and XI hearing acuity in his left ear.


CONCLUSION OF LAW

The criteria for a compensable evaluation for bilateral hearing loss prior to April 4, 2007, and an evaluation in excess of 10 percent disabling from April 4, 2007, have not been met.  38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.85 - 4.87, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Notice and Assistance

VA has duties 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).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  In an increased rating claim, VA must notify the Veteran to submit evidence showing (1) a worsening or increase in severity of the disability and (2) the effect that worsening has on the claimant's employment.  Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). 

Notice was provided in correspondence date in November 2003 and June 2006.  The claim was subsequently readjudicated, most recently in a March 2013 SSOC.  Mayfield, 444 F.3d at 1333.

With regard to the duty to assist, the claim's file contains the Veteran's service treatment records, VA and private medical records, and the transcript of an October 2012 hearing before the undersigned Veterans Law Judge.  The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record.  

The development requested by the Board's prior remands has been completed.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  In this regard, the Board notes that while the Veteran testified during the October 2012 hearing that he had undergone a VA hearing test the month before, VA records show that this hearing test actually occurred earlier that same month.  

VA examinations with respect to the Veteran's bilateral hearing loss were conducted in December 2003, July 2006, May 2011 and March 2013.  Although only the March 2013 VA examination report states that the examiner reviewed the Veteran's claims file or medical records, the evaluations were to assess the current levels of the disability.  Overall, the examiners considered the Veteran's medical history, including his lay reports of his symptomatology; described the Veteran's disability in sufficient detail; and fully described the functional effects caused by the Veteran's disability.  Stefl v. Nicholson, 21 Vet. App. 120 (2007).  The reports provide clinical findings which are pertinent to the criteria applicable to rating bilateral hearing loss.  See Martinak v. Nicholson, 21 Vet. App. 447 (2007).  

Thus, there is adequate medical evidence of record to make a determination in this case, and additional development by way of another examination would be redundant and unnecessary.  See 38 C.F.R. §§ 3.326 and 3.327 and Green v. Derwinski, 1 Vet. App. 121 (1991).  

The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim.

Legal Analysis

With respect to the Veteran's claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Where an increase in an existing disability rating based upon established entitlement to compensation is at issue, the present level of disability is the primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  However, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007). 

When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3.

VA rating criteria for the evaluation of hearing loss disability provide ratings from zero (noncompensable) to 100 percent, based on the results of controlled speech discrimination tests together with the results of pure tone audiometry tests which average pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz.  38 C.F.R. §§ 4.85-4.87; Diagnostic Codes 6100 to 6110.  The evaluation of hearing impairment applies a rather structured formula which is essentially a mechanical application of the rating schedule to numeric designations after audiology evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

In addition, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 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.  64 Fed. Reg. 25202-25210 (1999) (codified at 38 C.F.R. § 4.86).  Further, when the average 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 will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.  Id.

The Veteran contends that his bilateral hearing loss has increased in severity and warrants a higher evaluation.  He said that he could not use a telephone on his left ear, and could not understand people if they were on his left side.  He wore a hearing aid that transferred the sound from his left ear to his right.  It was unsafe for him to drive.  He could not hear his family members when they forgot to speak to his right side.  At work, his hearing loss required him to sit in the right position at a conference table.  

During the March 2003 VA audiological examination, pure tone thresholds, in decibels, were as follows:







HERTZ




1000
2000
3000
4000
RIGHT

15
10
15
50
LEFT

50
35
60
70

The average pure tone thresholds were 23 on the right and 54 on the left.  Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 52 percent in the left ear.  

These scores correlate to auditory acuity level I in the right ear and level VII in the left ear, under Table VI of 38 C.F.R. § 4.85.  A noncompensable rating is warranted under Diagnostic Code 6100 when the auditory acuity levels are entered into Table VII of 38 C.F.R. § 4.85.

During the July 2006 VA audiological examination, pure tone thresholds, in decibels, were as follows:




HERTZ




1000
2000
3000
4000
RIGHT

5
10
10
45
LEFT

70
65
65
75

The average pure tone thresholds were 20 on the right and 69 on the left.  Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 48 percent in the left ear.  

These scores correlate to auditory acuity level I in the right ear and level VIII in the left ear, under Table VI of 38 C.F.R. § 4.85.  A noncompensable rating is warranted under Diagnostic Code 6100 when the auditory acuity levels are entered into Table VII of 38 C.F.R. § 4.85.


During an April 2007 VA outpatient audiological examination, pure tone thresholds, in decibels, were as follows:




HERTZ




1000
2000
3000
4000
RIGHT

05
05
10
50
LEFT

65
55
65
75

The average pure tone thresholds were 18 on the right and 65 on the left.  Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 28 percent in the left ear.  

These scores correlate to auditory acuity level I in the right ear and level XI in the left ear, under Table VI of 38 C.F.R. § 4.85.  A 10 percent rating is warranted under Diagnostic Code 6100 when the auditory acuity levels are entered into Table VII of 38 C.F.R. § 4.85.

During the May 2011 VA audiological examination, pure tone thresholds, in decibels, were as follows:




HERTZ




1000
2000
3000
4000
RIGHT

5
10
10
50
LEFT

65
55
65
75

The average pure tone thresholds were 19 on the right and 65 on the left.  Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 42 percent in the left ear.  

These scores correlate to auditory acuity level I in the right ear and level IX in the left ear, under Table VI of 38 C.F.R. § 4.85.  A noncompensable rating is warranted under Diagnostic Code 6100 when the auditory acuity levels are entered into Table VII of 38 C.F.R. § 4.85.

An October 2012 VA outpatient treatment report does not provide pure tone thresholds.  It states that the Veteran's hearing had no significant changes compared to the May 2011 VA audiogram.   

During the March 2013 VA audiological examination, pure tone thresholds, in decibels, were as follows:




HERTZ




1000
2000
3000
4000
RIGHT

10
05
15
45
LEFT

70
60
65
65

The average pure tone thresholds were 19 on the right and 65 on the left.  Speech audiometry revealed speech recognition ability of 96 percent in the right ear.  Speech recognition for the left ear was invalid.  The report notes that the use of the speech recognition score was not appropriate for the Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that made combined use of pure tone average and speech discrimination scores inappropriate.  

These scores correlate to auditory acuity level I in the right ear and level V in the left ear, under Tables VI and VIa, respectfully, of 38 C.F.R. § 4.85.  A noncompensable rating is warranted under Diagnostic Code 6100 when the auditory acuity levels are entered into Table VII of 38 C.F.R. § 4.85.

The Board notes that in Martinak, supra, the Court held that, relevant to VA audiological examinations, 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.  In the present case, the December 2003 VA examination report provides that the Veteran complained of hearing loss greater in the left ear than the right, and that the left ear had decreased in sensitivity.  The July 2006 VA examination report provides that the Veteran's chief complaint was hearing loss, with hearing in crowds being the situation of greatest difficulty.  The March 2013 VA examination report provides that the Veteran complained of difficulty hearing in background noise, and stated that his VA-issued hearing aids did not help him much.  These notations indicate that VA examiners did elicit information from the Veteran concerning the functional effects of his disability as required by 38 C.F.R. § 4.1 , 4.2, 4.10.  See Martinak, supra.

The Board is aware of the Veteran's complaints as to the severity of his hearing loss.  As a general matter, lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness.  See Falzone v. Brown, 8 Vet. App. 398, 405 (1995).  Lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  See also Davidson v. Shinseki, 581 F.3d 1313 (Fed Cir. 2009).

Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470.  The Veteran is not, however, competent to identify a specific level of disability of his disability according to the appropriate diagnostic code.  See Robinson v. Shinseki, 557 F.3d 1355 (2009).

Competent evidence concerning the nature and extent of the Veteran's bilateral hearing loss has been provided by the medical personnel who have examined him during the current appeal.  The medical findings (as provided in the medical records) directly address the criteria under which bilateral hearing loss is evaluated. 

The observable symptoms that the Veteran describes simply do not satisfy the criteria for a compensable evaluation prior to April 4, 2007, or an evaluation in excess of 10 percent disabling from April 4, 2007.  As noted above, the clinical findings do not support a higher evaluation.

The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing.  The symptoms associated with the Veteran's bilateral hearing loss (i.e., difficulty hearing and understanding speech) are contemplated by the rating criteria and the medical evidence fails to show anything unique or unusual about the Veteran's bilateral hearing loss that would render the schedular criteria inadequate.  The Veteran's main complaint is reduced hearing acuity, which is precisely what is contemplated in the rating assigned.  The VA examiners specifically noted the Veteran's complaints regarding the effect of hearing loss on occupational function and on daily activities.  See Martinak, 21 Vet. App. at 447.  As the available schedular criteria for this service-connected disability are adequate, referral for consideration of an extraschedular rating is not warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  

The Board finds that the record does not raise a claim of entitlement to a total rating for compensation based on individual unemployability.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  The Veteran has not asserted, and the evidence does not show, that his bilateral hearing loss renders him unable to secure and follow a substantially gainful occupation.    

In sum, the medical evidence demonstrates that the Veteran is not entitled to a compensable evaluation for bilateral hearing loss prior to April 4, 2007, or an evaluation in excess of 10 percent disabling from April 4, 2007.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).

ORDER

A compensable evaluation for bilateral hearing loss prior to April 4, 2007, and an evaluation in excess of 10 percent disabling from April 4, 2007, are denied.




____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs