Citation Nr: 1319017 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 11-03 824 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an initial disability rating in excess of zero percent for service-connected bilateral hearing loss from January 31, 2008, to November 5, 2009, and in excess of 30 percent thereafter. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. D. Simpson, Counsel INTRODUCTION The Veteran had active military service from March 1951 to March 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in October 2009 and January 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan and Cleveland, Ohio, respectively. The Board notes that by decision issued in September 2009 it granted service connection for bilateral hearing loss. By rating decision issued in October 2009, the RO in Detroit, Michigan, effectuated the Board's September 2009 decision and awarded service connection for bilateral hearing loss effective January 31, 2008 and assigned a noncompensable disability rating. The RO thereafter scheduled the Veteran for a VA examination that was held in November 2009. By rating decision issued in January 2010, the RO in Cleveland, Ohio, awarded a 30 percent disability rating effective November 5, 2009, based upon the VA examination findings. In March 2010, the Veteran's representative submitted a Notice of Disagreement with the effective date of November 5, 2009, for the award of the 30 percent disability rating. The Veteran, however, also submitted a handwritten statement that same month in which he disagreed with the decision not to pay him retroactive pay to January 31, 2008. Reading the Veteran's statement liberally, the Board has interpreted his statement as a disagreement with the RO's failure to assign an initial compensable disability rating for his service-connected hearing loss. Consequently, although the RO developed the Veteran's appeal as one of entitlement to an earlier effective date of the 30 percent disability rating, the Board finds that the Veteran's appeal is best characterized as entitlement to a rating higher than 0 percent prior to November 5, 2009, and higher than 30 percent thereafter, which issue requires consideration of whether an effective date earlier than November 5, 2009, for the 30 percent award is warranted. Thus, the issue has been recharacterized as set forth on the title page of this decision. In May 2012 and February 2013, the Board remanded the claim for additional development. (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. On September 25, 2007, the Veteran's bilateral hearing was characterized by Level V hearing in both ears. 2. The Veteran's bilateral hearing has been no worse than Level VII hearing in his right ear and Level VI hearing in his left ear since November 5, 2009. CONCLUSIONS OF LAW 1. Prior to November 5, 2009, the criteria for a 20 percent rating, but no higher, for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.385, 4.85, 4.86 (2012). 2. Beginning November 5, 2009, the criteria for a rating in excess of 30 percent for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.385, 4.85, 4.86 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was enacted in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board finds that all notification action needed to make a decision as to the claim on appeal has been accomplished. The issue on appeal arises from disagreement with the initial ratings following the grant of service connection. The courts have held that once service connection is granted, the claim is substantiated. Additional VCAA notice is not required. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The record indicates that the Veteran was provided with VCAA notice in April 2008. Specifically, the RO notified the Veteran of information and evidence necessary to substantiate his service connection claim. He was notified of the information and evidence that VA would seek to provide and the information and evidence that he was expected to provide. There is no indication that any additional action is needed to comply with the duty to assist in connection with the issue on appeal. The Veteran's service treatment records have been obtained and associated with the claims file, as have treatment records from the VA Medical Center (VAMC) in Saginaw, Michigan and private audiology treatment records. The AOJ contacted a private audiologist for clarification of his records, but did not receive a response. Additionally, the Veteran was provided VA examinations in connection with his claim, the most recent taking place in November 2012. The reports contain sufficient evidence by which to evaluate the Veteran's bilateral hearing loss in the context of the rating criteria. Thus, VA has properly assisted the Veteran in obtaining any relevant evidence. The Board also finds that the record reflects substantial compliance with its May 2012 and February 2013 remands. The agency of original jurisdiction (AOJ) obtained Saginaw VAMC records through August 2012 and private audiology treatment records from June 2009. It contacted HearUSA to obtain clarification of a June 2009 audiogram, and readjudicated the claim in light of 38 C.F.R. § 4.86(a) by way of a April 2013 Supplemental Statement of the Case. Accordingly, the Board is satisfied that the duty-to-assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) were satisfied and that there was at least substantial compliance with all terms of its May 2012 and February 2013 remands for the issue decided herein. See D'Aries v. Peake, 22 Vet. App. 97, 104-06 (2008) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (substantial compliance as applied to remand instructions)); Stegall v. West, 11 Vet. App. 268 (1998). 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 (West 2002); 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 (2012). After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012). A 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). Because the veteran is challenging the initially assigned disability rating, it has been in continuous appellate status since the original assignment of service connection. The evidence to be considered includes all evidence proffered in support of the original claim. Fenderson v. West, 12 Vet. App. 119 (1999). The assigned evaluation for hearing loss is determined by mechanically applying the rating criteria to certified test results. See 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 puretone 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) (2012). Additionally, the regulations allow for evaluating exceptional patterns of hearing impairment. When the puretone 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) (2012). When the puretone 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 September 2007, the Veteran had an audiogram. The puretone threshold average was 66.25 for the right ear and 62.5 for the left ear. The examiner listed his word recognition as excellent. It is unclear whether the Maryland CNC controlled speech discrimination test was used. However, he met the criteria for exceptional patterns of hearing impairment under 38 C.F.R. § 4.86. Under Table VIA, a numeral of V is assigned for each ear and results in a 20 percent rating. 38 C.F.R. §§ 4.85, 4.86, Tables VIA and VII. A June 2009 private audiogram is of record. However, unlike the September 2007 private audiogram, the precise decibel readings are ambiguous due to the double lines marked on the audiometry chart. The audiologist diagnosed bilateral sensorineural hearing loss and recommended hearing aids. He noted functional impairment difficulty hearing conversation, television, background and environmental noise, and feelings of annoyance. However, the Veteran did not endorse pain, drainage, or otitis media type symptoms. In November 2009, the Veteran underwent VA audiological examination. The puretone threshold average was 70 for the right ear and 73 for the left ear. He again met the criteria for exceptional patterns of hearing impairment under 38 C.F.R. § 4.86. The Maryland CNC speech recognition score was 86 percent for the right ear and 92 percent for the left ear. Based on those results with the utilization of Table VI, the Veteran has level III hearing impairment in the right ear and level II hearing impairment in the left ear. Since the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VIA is applicable. Under Table VIA, the Veteran has level VI impairment in both ears. Table VIA is more favorable to the Veteran as the higher level VI impairment in both ears results in a 30 percent rating. 38 C.F.R. § 4.85 (Diagnostic Code 6100). The Veteran had his most recent VA audiology examination in November 2012. The puretone threshold average was 78 for the right ear and 72 for the left ear. The Maryland CNC speech recognition score was 84 percent for the right ear and 92 percent for the left ear. Based on those results with the utilization of Table VI, the Veteran has level III hearing impairment in the right ear and level II hearing impairment in the left ear. Since the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VIA is applicable. Under Table VIA, the Veteran has level VII impairment in the right ear and level VI impairment in the right ear. Table VIA is more favorable to the Veteran as the higher level impairments in both ears results in a 30 percent rating. 38 C.F.R. § 4.85 (Diagnostic Code 6100). Upon review, the Veteran met the criteria for a 20 percent rating prior to November 5, 2009. He demonstrated exceptional patterns of hearing impairment under 38 C.F.R. § 4.86. Table VIA provides a level V hearing in both ears to meet the 20 percent rating criteria. 38 C.F.R. §§ 4.85, 4.86 (Diagnostic Code 6100). The preponderance of the evidence is against a finding that rating criteria for ratings in excess of 20 percent prior to November 5, 2009 and in excess of 30 percent thereafter are met. See id. As noted above, the most recent VA examination confirmed level VII impairment in the right ear and level VI impairment in the left ear under Table VIA numeric designation. The level of impairment shows the Veteran continues to meet the criteria for a 30 percent rating, but no higher. Id. The Board recognizes that the Veteran believes higher disability ratings are warranted. However, as already noted, the rating assigned for hearing loss is determined by a mechanical application of the rating schedule, which is grounded on numeric designations assigned to audiometric examination results. Lendenmann, 3 Vet. App. at 349. The evidence does not show that the Veteran met the numerical designation for hearing loss ratings in excess of 20 percent prior to November 5, 2009 and in excess of 30 percent thereafter. Id.; 38 C.F.R. §§ 4.85, 4.86 (Diagnostic Code 6100). Accordingly, a rating of 20 percent, but no higher, prior to November 5, 2009 is granted and a rating in excess of 30 percent thereafter is denied. If the evidence raises the question of entitlement to an extraschedular rating, 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 a 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), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Under the approach prescribed by VA, 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"). After consideration of the evidence, the Board has determined that referral for an extraschedular rating is not warranted. The Board has considered symptoms of the Veteran's service-connected hearing loss. Mittleider v. West, 11 Vet. App. 181 (1998). The November 2012 VA examination report showed that the Veteran reported functional impairment of having to ask that statements be repeated. The Veteran's wife reports that conversation with the Veteran is "nearly impossible" due to the Veteran's incomprehension caused by hearing loss. Nonetheless, the clinical examiners, including most recently in November 2012, have not identified any unusual or otherwise exceptional symptoms. The primary symptoms of decreased hearing acuity and speech discrimination are clearly contemplated by the schedular rating criteria. The record does not otherwise suggest the presence of any extraordinary symptoms or manifestations due to hearing loss. For these reasons, the Board considers the schedular evaluation to be adequate and referral for extraschedular consideration is not warranted. Thun, supra.; 38 C.F.R. § 3.321. ORDER A rating of 20 percent from January 31, 2008, to November 5, 2009, for bilateral hearing loss is granted; the appeal in all other respects is denied. _______________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs