Citation Nr: 1320057 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-43 162 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to a compensable rating for bilateral hearing loss disability. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty in the November 1959 to October 1962. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. FINDING OF FACT Service-connected hearing loss disability is manifested, at worst, by level I hearing loss in the right ear and level VII hearing loss in the left ear. CONCLUSION OF LAW The criteria for a compensable disability evaluation for a bilateral hearing loss disability has not been met or approximated. 38 U.S.C.A. § 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.385, 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. 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 submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (finding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). A VCAA letter dated in February 2009 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. The February 2009 letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). Post-service VA treatment records have been associated with the claims file. All identified and available treatment records have been secured. The Board finds that VA has fulfilled its duty to assist in obtaining such records. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2012). In this case, the Board notes that the Veteran was provided March 2009 and December 2012 QTC examinations to determine the nature and severity of the Veteran's bilateral hearing loss. The examination report reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate audiological evaluation of the Veteran, and provided sufficient evidence to evaluate the Veteran's disability. The Board, therefore, concludes that this examination report is adequate for purposes of rendering a decision in the instant appeal. See 38 CF.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and her representative have not contended otherwise. The Board recognizes that in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2009). The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow deficient, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. During the March 2009 and December 2012 examinations, the Veteran indicated that functional impairment included difficulty understanding conversations. He also reported he needs the television to be turned up very loud. Thus, as contemplated by Martinak and directed by 38 C.F.R. § 4.10, the VA examiner discussed the functional effects of the Veteran's hearing problems in the examination report. Additionally, the Veteran has not stated nor is there evidence indicating that there has been a material change in the severity of his hearing since he was last examined in December 2012. See 38 C.F.R. § 3.327(a) (2012). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95 (April 7, 1995). The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has declined to present testimony before a Veterans Law Judge. Therefore, the duties to notify and assist have been met. Law and Regulations for Hearing Loss Disability Ratings The severity of a service-connected disability is ascertained, for VA rating purposes, by the application of rating criteria set forth in VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (2012) (Schedule). To evaluate the severity of a particular disability, it is essential to consider its history. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1 and 4.2 (2012). Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. See 38 C.F.R. §§ 3.102, 4.3 (2012). In addition, where there is a question as to which of two disability 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. See 38 C.F.R. § 4.7 (2012). The Court has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following matter is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The assignment of disability ratings for service-connected hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations for defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 Hertz. The rating schedule establishes eleven auditory acuity levels designated from level I for essentially normal auditory acuity to level XI for profound deafness. See 38 C.F.R. § 4.85 (2012). Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). Table VIA* Numeric designation of hearing impairment based only on puretone threshold average Puretone Threshold Average 0-41 42-48 49-55 56-62 63-69 70-76 77-83 84-90 91-97 98-104 105+ I II III IV V VI VII VIII IX X XI *This table is for use only as specified in §§4.85 and 4.86. Table VI Numeric designation of hearing impairment based on puretone threshold average and speech discrimination. % of discrim- ination Puretone Threshold Average 0-41 42-49 50-57 58-65 66-73 74-81 82-89 90-97 98+ 92-100 I I I II II II III III IV 84-90 II II II III III III IV IV IV 76-82 III III IV IV IV V V V V 68-74 IV IV V V VI VI VII VII VII 60-66 V V VI VI VII VII VIII VIII VIII 52-58 VI VI VII VII VIII VIII VIII VIII IX 44-50 VII VII VIII VIII VIII IX IX IX X 36-42 VIII VIII VIII IX IX IX X X X 0-34 IX X XI XI XI XI XI XI XI Table VII, "Percentage Evaluations for Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. Table VII Percentage evaluation for hearing impairment (Diagnostic Code 6100) Poorer Ear Better Ear XI 100 X 90 80 IX 80 70 60 VIII 70 60 50 50 VII 60 60 50 40 40 VI 50 50 40 40 30 30 V 40 40 40 30 30 20 20 IV 30 30 30 20 20 20 10 10 III 20 20 20 20 20 10 10 10 0 II 10 10 10 10 10 10 10 0 0 0 I 10 10 0 0 0 0 0 0 0 0 0 XI X IX VIII VII VI V IV III II I When the puretone thresholds at the four specified frequencies (1000, 2000, 3000, and 4000 hertz) 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. See 38 C.F.R. § 4.86(a) (2012). When the pure tone thresholds are 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz, the rating specialist will likewise 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 highest Roman numeral. See 38 C.F.R. § 4.86(b) (2012). Factual Background and Analysis In November 2005, the RO granted service connection for a bilateral hearing loss disability due to excessive noise exposure in service. In December 2008, the Veteran filed a claim for an increased rating for bilateral hearing loss. In a March 2009 QTC examination, the Veteran complained of difficulty hearing many environmental sounds, conversations with his family, and he reported that speech is usually unclear, especially in the presence of background noise. He also underwent an audiological evaluation. Pure tone thresholds, in decibels, were as follows: HERTZ 500 A 1000 B 2000 C 3000 D 4000 E Average RIGHT 45 20 35 65 70 47.5 LEFT 5 10 40 60 75 46.25 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 100 percent in the left ear. Applying the above results to the Table VI chart, the Board notes that a puretone threshold average of 48 decibels and a speech discrimination of 88 percent in the right ear will result in level II hearing for that ear. Likewise, applying the above results to the Table VI chart, the Board notes that a puretone threshold average of 46 decibels and a speech discrimination of 100 percent in the left ear will result in level I hearing for that ear. Applying these results to the Table VII chart (with the right ear being the "poorer" ear), the Board finds that a level II for the right ear, combined with a level I for the left ear, will result in a noncompensable evaluation. Consideration of section 4.86(b) is not warranted, given that the evidence does not reflect a simultaneous puretone threshold of 30 db or less at 1000 Hz and a puretone threshold of 70 db or more at 2000 Hz. 38 C.F.R. § 4.86 (2012). During a February 2009 VA audiology progress note, the Veteran complained of difficulty hearing in the right ear and finds that he turns the television volume louder than others prefer. Upon assessment, the audiologist noted the Veteran had asymmetry in low frequencies, poorer hearing in the right ear, and symmetrical hearing loss from 1-8k Hz. The examiner noted that this was consistent with previous audiograms. The Veteran was evaluated again by VA in September 2009. The examiner noted right early hearing loss rising to within normal limits through 1500 Hz with mild to severe sensorineural hearing loss with fair word discrimination. In the left year, hearing was within normal limits through 1500 Hz with moderate to severe sensorineural hearing loss with good word discrimination. The Veteran reported he was not interested in hearing aids at that time. In a December 2012 QTC examination, the Veteran complained of difficulty understanding what people say so he has to ask that they repeat themselves. He also reported he needs the television to be turned up very loud. The Veteran underwent an audiological evaluation. Pure tone thresholds, in decibels, were as follows: HERTZ 500 A 1000 B 2000 C 3000 D 4000 E Average RIGHT 55 25 35 65 75 50 LEFT 15 15 70 80 80 61.25 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 52 percent in the left ear. Applying the above results to the Table VI chart, the Board notes that a puretone threshold average of 50 and a speech discrimination of 92 percent in the right ear will result in level I hearing for that ear. Likewise, applying the above results to the Table VI chart, the Board notes that a puretone threshold average of 61 and a speech discrimination of 52 percent in the left ear will result in level VII hearing for that ear. The Board considered using Table VIA for the Veteran's left ear, however, a puretone average threshold of 61 would only result in level IV hearing. Therefore, the Board will use Table VI for the Veteran's left ear. Applying these results to the Table VII chart (with the left ear being the "poorer" ear), the Board finds that a level I for the right ear, combined with a level VII for the left ear, will result in a noncompensable evaluation. The Board notes that the December 2012 QTC examiner noted on the chart a value of 40 db at 1000 Hz; however, the value on the audiogram is clearly 15 db at 1000 Hz and 40 db at 1500 Hz. Even affording the Veteran the benefit of the doubt would not change the disability rating assigned. Applying the above results with the change at 1000 Hz to the Table VI chart, the Board notes that a puretone threshold average of 50 and a speech discrimination of 92 percent in the right ear will result in level I hearing for that ear. Likewise, applying the above results to the Table VI chart, the Board notes that a puretone threshold average of 67.5 and a speech discrimination of 52 percent in the left ear will result in level VIII hearing for that ear. Therefore, the Board will use Table VI for the Veteran's left ear. Applying these results to the Table VII chart (with the left ear being the "poorer" ear), the Board finds that a level I for the right ear, combined with a level VIII for the left ear, will result in a noncompensable evaluation. In this case, the Board finds that the Veteran is not entitled to an increased disability rating for his hearing loss disability based upon all objective hearing loss measurements as mechanically applied to the relevant tables. To the extent that the Veteran contends that his hearing loss is more severe than contemplated by the current evaluation, the Board observes that the Veteran, while competent to report symptoms, such as difficulty hearing, is not competent to report that his hearing acuity is sufficient to warrant higher evaluations under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise which the Veteran has not been shown to have. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). It is important to note that the results of the VA audiometric testing do not signify the absence of a significant disability associated with the Veteran's hearing loss disability. However, the degree to which this disability affects the average impairment of earnings, according to the Rating Schedule, results in a noncompensable disability. See Id.; 38 U.S.C.A. § 1155. Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). As such, a compensable evaluation for the Veteran's service-connected bilateral hearing loss disability is not warranted. Extraschedular Considerations The Board has also considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto 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 to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected hearing loss disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's hearing loss disability with the established criteria shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. Specifically, the Veteran reports difficulty hearing and understanding speech in various situations. The Board notes that the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability. In support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86. In this regard, the rating criteria for hearing loss were last revised, effective June 10, 1999. See 64 Fed. Reg. 25206 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17295 (April 12, 1994). Accordingly, the Board finds that functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria. Therefore, the Veteran's struggle to comprehend speech under various conditions is a factor contemplated in the regulations and rating criteria as defined. Accordingly, the Board determines that the Veteran's complaints of hearing difficulty have been considered under the numerical criteria set forth in the rating schedule. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service- connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that his hearing loss disability renders him totally unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised. ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs