Citation Nr: 1319477 Decision Date: 06/17/13 Archive Date: 06/27/13 DOCKET NO. 11-33 066 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to a disability rating in excess of 10 percent for the service-connected bilateral hearing loss disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1950 to September 1954. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by the RO. In that decision, the RO assigned an increased rating of 10 percent for the service-connected bilateral hearing loss and a separate 10 percent rating for the service-connected tinnitus (previously rated with hearing loss), both effective March 11, 2010; service connection for hepatitis A & B was also denied. Thereafter, the Veteran filed a timely Notice of Disagreement as to the ratings for bilateral hearing loss and tinnitus, and a subsequent Statement of the Case was issued as to these two matters. An October 2011 Decision Review Officer decision granted an earlier effective date for the assignment of the 10 percent rating for the service-connected tinnitus. In his December 2011 Substantive Appeal (VA Form 9), the Veteran limited his appeal to the rating for the service-connected bilateral hearing loss. That same month, the RO notified the Veteran in a letter that his request to withdraw tinnitus from his appeal was recognized. As part of this notification letter, the RO also informed the Veteran that it could not accept a separate December 2011 statement (in which he indicated that he was also appealing the RO's decision as to service connection for hepatitis) as a Notice of Disagreement, as the appeal time period had expired; information regarding reopening the claim on the basis of new and material evidence was provided. In April 2013, the RO sent the Veteran another letter in this regard, which also addressed the Veteran's statements in an October 2012 written submission regarding medical disorders not raised previously; he indicated that he was unable to work due to these disorders. The Veteran has not replied to this letter to date. In any event, the Veteran has perfected an appeal as to the issue of an increased rating for the service-connected bilateral hearing loss. 38 C.F.R. § 20.202 (2012). As such, considering the above discussion, the Board finds that this is the remaining issue before the Board for consideration. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the claim. A review of the documents in the electronic file reveals that some are non-duplicative of those in the paper claims file, to include evidence of the Veteran's ongoing VA treatment. However, those outstanding records were obtained and considered by the RO prior to the issuance of the Supplemental Statement of the Case in September 2012. Therefore, the Board finds that there is no prejudice in proceeding with consideration of the evidence in the Virtual VA file. 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 For the period of the appeal, the service-connected bilateral hearing loss disability is shown to be manifested by no worse than level VII hearing acuity in the right ear and level II on the left. CONCLUSION OF LAW The criteria for the assignment of a disability rating in excess of 10 percent for the service-connected bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, 4.86 including Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (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). Under VCAA, VA must inform the claimant 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 claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Veteran was provided all required VCAA notice in an April 2010 letter, including appropriate notice with respect to the disability rating and effective date elements of his claim, prior to the initial adjudication of the claim in October 2010. VCAA also requires VA to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record reflects that all pertinent available service treatment records and all available post-service medical evidence identified by the Veteran have been obtained. The Veteran's written statements are also of record. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. In addition, the Veteran was afforded appropriate VA examinations in connection with his claims. The Board finds that the examinations were adequate, in that the exams were conducted by medical professionals who solicited history from the Veteran and performed thorough examinations. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that even if not statutorily obligated to do so, if VA provides the veteran with an examination in a service connection claim, the examination must be adequate); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board does observe that the April 2010 VA examiner did not review the claims file; however, she did consider the Veteran's own reported medical history and complaints. She also performed a physical examination that addressed all of the rating criteria. Indeed, the Court has held that the relevant focus is not on whether a clinician had access to the claims file, but instead on whether the clinician was "informed of the relevant facts" in rendering a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There have been no allegations of any prejudice caused by a deficiency in the examinations here. Indeed, the Veteran has been represented throughout the course of the appeal, yet the documents submitted do not contain any such assertion. Based on the foregoing, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Principles and Analysis Disability ratings are determined by application of the criteria in the VA Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R., Part 4 (2012). Each disability must be viewed in relation to its history, and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ("staged") ratings may be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Here, as explained, a uniform rating is warranted. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran contends that he is entitled to a higher disability rating for his service-connected bilateral hearing loss. Historically, the Veteran was awarded service connection with a noncompensable disability rating assigned effective on September 30, 1954. He filed his claim for an increased rating in March 2010, and the current 10 percent rating was granted in the rating decision on appeal, effective from March 11, 2010. Ratings for hearing impairment are derived by the mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under the rating criteria, the method for rating hearing loss disability is based on examination results including a controlled speech discrimination test (Maryland CNC) and a puretone audiometric test of puretone decibel thresholds at 1000, 2000, 3000, and 4000 Hz, with an average puretone threshold obtained by dividing these thresholds by four. 38 C.F.R. § 4.85. Once these test results have been obtained, employing Table VI, a Roman numeral designation of auditory acuity level for hearing impairment is ascertained based on a combination of the percent of speech discrimination and puretone threshold average. Once a Roman numeral designation of auditory acuity level for each ear has been determined, Table VII is used to determine the percentage evaluation for bilateral hearing loss by combining the Roman numeral designations of auditory acuity level for hearing impairment of each ear. 38 C.F.R. § 4.85. There is an alternative method of rating hearing loss in defined instances of exceptional hearing loss. Exceptional hearing loss exists when the puretone threshold at the frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more; or where the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. In November 2009, the Veteran underwent a private audiological examination. The Board notes that speech recognition was not measured using the Maryland CNC test. Instead, the examination report indicates that the PB-50 word lists were used for speech recognition testing. Under 38 C.F.R. § 4.85(a), an examination for hearing impairment for VA purposes "must include a controlled speech discrimination test (Maryland CNC)." Therefore, this private audiological report is deemed not to be adequate for rating purposes. The Board notes that this is not a case in which clarification of the private audiological examination report is required. Rather, the report itself reflects that it did not comply with 38 C.F.R. § 4.85(a). In addition, the Board notes that there was a relatively short amount of time between this test and the VA examination in April 2010, and there is no evidence or contention that the Veteran's bilateral hearing loss had fluctuated regularly or otherwise changed. Cf. Savage v. Shinseki, 24 Vet. App. 259 (2011). Indeed, the puretone thresholds appear to be similar on both this November 2009 private audiological report and the April 2010 VA examination performed shortly thereafter, and an additional VA examination was conducted in June 2012. A December 2009 private treatment record shows that the Veteran was seen with a history of bilateral hearing loss; however, no audiometric findings were reported. Similarly, VA treatment records show continued treatment for hearing loss but no audiometric findings. On April 2010 VA audiological examination, the Veteran's puretone thresholds in decibels were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 50 75 95 105 81 LEFT 20 45 70 100 59 His speech recognition was 76 percent in the right ear and 96 percent in the left ear. These audiometric findings equate to level V hearing in the right ear and level II hearing in the left ear. See 38 C.F.R. § 4.85, Table VI. Applying these values according to Table VII results in a 10 percent rating. On June 2012 VA audiological examination, the Veteran's puretone thresholds in decibels were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 65 65 95 105 83 LEFT 30 50 75 90 61 His speech recognition was 88 percent in the right ear and 92 percent in the left ear. These audiometric findings equate to level IV hearing in the right ear and level II hearing in the left ear. See 38 C.F.R. § 4.85, Table VI. However, Table VIA for exceptional hearing loss is for application for the right ear in this instance, as the puretone threshold at the frequencies of 1000, 2000, 3000, and 4000 Hertz was 55 decibels or more - resulting in audiometric findings equating to level VII hearing in the right ear. See 38 C.F.R. §§ 4.85, Table VIA; 4.86. Applying the values of level VII hearing in the right ear with level II hearing in the left ear according to Table VII results in a 10 percent rating. Based on the above evidence, including application of the audiometry evaluation results to the tables provided in the Rating Schedule, the Board concludes that a rating in excess of 10 percent is not assignable for any time during the appeal period. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. at 53. Consideration has also been given regarding whether the schedular evaluation in this case is inadequate, thus 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 commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-16. 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. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this regard, the schedular criteria in this case are not shown to be inadequate. A rating in excess of 10 percent is provided for certain manifestations of the service-connected bilateral hearing loss, but the evidence reflects that those manifestations are not present in this case. The diagnostic criteria adequately describe the severity and symptomatology of the service-connected disability, specifically the Veteran's complaints that his long-standing hearing loss has caused him difficulty, to include word recognition when speaking to others. In fact, the rating criteria specifically contemplate exceptional hearing loss results, such as those present in the right ear on the June 2012 VA examination. Here, application of such provisions resulted in the same 10 percent rating for the disability. Accordingly, this issue need not be referred for consideration of an extraschedular rating. ORDER An increased rating in excess of 10 percent for the service-connected bilateral hearing loss disability is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs