Citation Nr: 1320088	
Decision Date: 06/21/13    Archive Date: 07/02/13

DOCKET NO.  10-36 588	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to an initial rating in excess of 20 percent for bilateral hearing loss.

2.  Entitlement to an effective date earlier than June 26, 2000, for entitlement to service connection for coronary artery disease (CAD) due to presumed herbicide exposure.


ATTORNEY FOR THE BOARD

W.T. Snyder, Counsel


INTRODUCTION

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).


The Veteran served on active duty from September 1954 to August 1977.

This appeal to the Board of Veterans' Appeals (Board) arose from January 2010 and December 2011 rating decisions issued by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Waco, Texas. 

The Veteran requested a formal hearing before an RO decision review officer (DRO).  An October 2011 Informal Conference Report by the DRO, however, reflects that he accepted an informal hearing in exchange for another VA examination, which was in fact conducted.

The issue of whether new and material evidence to reopen a claim of entitlement to an esophageal ulcer as secondary to gastroesophageal reflux disease has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it/, and it is referred to the AOJ for appropriate action.

In June 2010, the Board remanded the case to the RO, via the Appeals Management Center (AMC), in Washington, DC, for issuance of a Statement of the Case (SOC) on the issue of entitlement to service connection for bilateral hearing loss.  Such SOC was issued in August 2010, and the Veteran perfected the appeal.  See 38 C.F.R. § 20.200 (2012).

The issue of entitlement to an effective date later than June 26, 2000, for entitlement to service connection for CAD due to presumed herbicide exposure is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

The Veteran has a Virtual claims file, which is a highly secured paperless repository, associated with his appeal.  The Board has checked the documents in the Virtual file, and they are duplicative of those in the paper file.

FINDINGS OF FACT

1.  The Veteran's bilateral hearing loss manifests with an exceptional pattern of hearing impairment in the left ear at Roman Numeral Level V per Table VIA.

2.  The right ear manifests at Roman Numeral Level IV.  An exceptional pattern of hearing impairment has not manifested at any time during the initial rating period.


CONCLUSION OF LAW

The requirements for an initial rating higher than 20 percent for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.10, 4.86, 4.85, Diagnostic Code (DC) 6100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  Consequently, discussion of VA's compliance with VCAA notice requirements would serve no useful purpose.

VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and by affording him VA examinations.  He was provided the opportunity to present pertinent evidence and testimony.  The Veteran does not assert that there are further records to be obtained.  In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication.  See  38 C.F.R. § 3.159(c).  Hence, the Board may address the merits of the Veteran's appeal without prejudice to him.

Applicable Law and Regulation

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Disabilities must be reviewed in relation to their history.  Id.  

VA must also interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability.  38 C.F.R. § 4.2.  VA must resolve any reasonable doubt regarding the degree of disability in favor of the claimant.  38 C.F.R. § 4.3.  Where there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21 (2012). 

VA must also evaluate functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity.  38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The Board will consider entitlement to staged ratings to compensate for times since the effective date of the award of service connection.  See Fenderson v. West, 12 Vet. App. 119 (1999).

Analysis

As noted in the Introduction, the Veteran perfected his appeal while the case was on remand.  Prior to a certification of the initial appeal to the Board, however, the AMC, in a January 2010 rating decision, awarded service connection, and the Veteran perfected an appeal of the initial rating.
In addition to the general requirements applicable to increased rating claims noted earlier, hearing loss ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with average hearing thresholds determined by puretone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 cycles per second.  "Puretone threshold average" is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz divided by four.  This average is used in all cases (including those in §4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIA.  38 C.F.R. § 4.85, DC 6100.

The rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness.  38 C.F.R. § 4.85.  The horizontal rows in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  The vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test.  The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect.  See 38 C.F.R. §§ 4.85, 4.87.

The regulations also provide that in cases of exceptional hearing loss, i.e., when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the Roman numeral designation will be determined for hearing impairment, separately, from either Table VI or Table VIA, whichever results in the higher numeral.  38 C.F.R. § 4.86.  A Roman numeral designation will also be determined from either Table VI or Table VIA, whichever results in the higher numeral, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz.  That numeral will then be elevated to the next higher Roman numeral.

Upon VA examination in August 2009, the Veteran reported that he had difficulty understanding speech in all listening situations, and his word recognition ability had worsened, even when wearing his VA-issued hearing aids.  His audiometric examination results were as follows:

Ear
1000
2000
3000
4000
Average
Right
45
60
65
75
61
Left
55
60
65
75
64

Speech recognition was 76 percent in the right ear, and in the left ear: 80 percent at 85 decibels (db), and 76 percent at 80 decibels.  The examiner diagnosed a mild sloping to severe sensorineural hearing loss.  Otoscopic examination revealed clear ear canals, and the tympanic membranes were visible.  The examiner noted that the Veteran's Speech recognition was fair.

The objective findings on clinical examination show that the Veteran's hearing loss manifested at Level IV in the right ear.  See Table VI.  Further, an exceptional pattern of hearing loss was not manifested in the right ear.  The left ear, however, manifested an exceptional pattern of hearing loss.  Table VIA provides the Veteran the higher Roman Numeral for an average hearing loss of 64 db with 76 percent Speech recognition, which is Roman Numeral V.  Roman Numerals V and IV intersect at the 10 percent rate.  38 C.F.R. § 4.85, Table VII.  Thus, the examination results do not warrant a higher evaluation here.

The Board notes that the rating decisions and the Supplemental Statements of the case (SSOC) reflect that the RO treated both ears as manifesting an exceptional pattern of hearing loss.  All of the examination reports show that is not the case, however, as the right ear has not manifested at 55 db or more at 1000 Hertz (Hz).  To manifest an exceptional pattern of hearing loss, an ear must manifest at 55db or more at all frequencies.  38 C.F.R. § 4.86.  As just noted, the Veteran's right ear did not do so at 1000 Hz.  

The April 2012 examination report reflects the examiner again conducted a review of the claims file as part of the examination.  The Veteran's audio examination results were as follows:

Ear
1000
2000
3000
4000
Average
Right
50
60
75
80
66.25
Left
55
65
70
80
67.5

Speech recognition was 76 percent in the right ear, and 80 percent in the left ear.  The examiner diagnosed a mild sloping to severe sensorineural hearing loss.  Otoscopic examination revealed clear ear canals, and the tympanic membranes were visible.  The examiner noted the Veteran's Speech recognition was fair in the right ear and fair in the left.

The objective findings on clinical examination show the Veteran's hearing loss continued to manifest at Level IV in the right ear.  See Table VI.  Further, an exceptional pattern of hearing loss was not manifested in the right ear.  The left ear, however, did manifest an exceptional pattern of hearing loss.  Table VIA again provides the Veteran the higher Roman Numeral for an average hearing loss of 64 db with 76 percent Speech recognition, which is Roman Numeral V.  Roman Numerals V and IV intersect at the 10 percent rate.  38 C.F.R. § 4.85, Table VII.  Again, a rating in excess of 20 percent is not warranted based on the objective testing results.  Indeed, it appears that the RO miscalculated the 20 percent evaluation presently in effect- however, that is not the Board's concern.  The sole issue on appeal is whether a rating in excess of 20 percent is supported by the record- as clearly explained above, it is not.

The Veteran's Notice of Disagreement (NOD) and his written submissions reflect that his main contention is that the RO did not consider his poor word recognition in his rating.  The Board must reject this assertion, as the rating criteria for hearing loss make speech recognition an integral part of the levels of severity of hearing loss.  See 38 C.F.R. § 4.85, Table VI.  

In this case, the VA examiners did not expressly consider the impact of the Veteran's hearing loss on his daily living.  Martinak v. Nicholson, 21 Vet. App. 447 (2007).  However, the assignment of ratings for hearing loss is strictly a mechanical process.  See Lendenman v. Principi, 3 Vet. App. 345 (1992).  Thus, this deficiency is deemed harmless error.  

The Board also notes that the Veteran's VA outpatient records reflect his complaints of decreasing ability to understand speech in essentially all situations.  They also note, however, that at a number of his visits for maintenance, his hearing aids were found to be clogged with ear wax.  After a cleaning and checking the amplification settings, they were deemed to be functioning properly.  The outpatient records do record the Veteran's hearing difficulty, but his bilateral hearing loss has been properly rated, to include consideration of his word recognition difficulty, as shown by the objective findings on clinical examination.  

As earlier noted, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the initial rating period on appeal, assignment of staged ratings are permissible.  Fenderson, 12 Vet. App. 119.   The preponderance of the evidence of record, however, reflects the Veteran's hearing loss has remained constant throughout the course of the period on appeal and, as such, a staged rating is not warranted.

The Board has also considered whether there is a factual basis for referral for consideration of a higher rating on an extraschedular basis.  See 38 C.F.R. § 3.321(b)(1).  The applicable rating criteria are based on the ability to hear at the puretone thresholds described above at four specific frequencies and a claimant's speech recognition.  Thus, the rating criteria both describe and contemplate the Veteran's hearing loss, which means the Veteran's hearing loss disability is not exceptional.  See Thun v. Peake, 22 Vet. App. 111 (2008).  In the absence of an exceptional disability picture, there is no factual basis for referral for extraschedular consideration.  38 C.F.R. § 3.321(b)(1).

In reaching this decision the Board considered the doctrine of reasonable doubt.  As the preponderance of the evidence is against the Veteran's claim, however, the doctrine is not for application.  Schoolman v. West, 12 Vet. App. 307, 311 (1999).


ORDER

Entitlement to an initial rating higher than 20 percent for bilateral hearing loss is denied.

REMAND

An appeal to the Board is initiated by the filing of a timely NOD and completed by a timely Substantive Appeal after a SOC is furnished.  See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302.

A December 2011 rating decision awarded service connection for CAD due to presumed herbicide exposure and assigned an initial 30 percent rating with an effective date of June 26, 2000, and the Veteran appealed the assigned effective date.  A December 2012 rating decision denied the Veteran's appeal.  In correspondence received by the Board in May 2013, the Veteran has clearly evidenced his desire to continue his appeal by disagreeing with the December 2012 rating decision.  The Board finds no indication in the paper or Virtual claims file that an SOC has been issued for this appeal.  See Manlincon v. West, 12 Vet. App. 238 (1999).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

Provide the Veteran an SOC respect to the issue of entitlement to an effective date earlier than June 26, 2000, for entitlement to service connection for CAD due to presumed herbicide exposure.  The Veteran should be informed of the actions necessary to perfect an appeal on the issue.  Thereafter, this issue is to be returned to the Board only if an adequate and timely Substantive Appeal is filed. 

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112.



______________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs