Citation Nr: 1320348 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 11-05 321 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an initial compensable disability rating for the service-connected bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty from July 1963 to July 1967. This matter previously came before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which granted service connection for tinnitus (10%) and bilateral hearing loss (0%) and denied service connection for an ear/sinus disorder, claimed as residuals of blown ear drums. In September 2012, the Veteran testified at a hearing in Boston, Massachusetts, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. In a November 2012 decision, the Board dismissed the claim for an initial disability rating in excess of 10 percent for the service-connected tinnitus (pursuant to the Veteran's written request to withdraw this issue from appellate review) and remanded the remaining claims to the RO via the Appeals Management Center (AMC) for further development. As the appeal involved a request for a higher initial rating following the grant of service connection, the Board characterized the issue as stated on the title page. Fenderson v. West, 12 Vet. App. 119 (1999). In the remand portion of the November 2012 decision, the Board in part requested that the AMC accord the Veteran a VA examination to determine the severity of his hearing loss. Accordingly, the AMC accorded him an examination in December 2012. The report of that examination is substantially responsive to the Board's request, and the Board finds that there has been substantial compliance with the remand directives. Dyment v. West, 13 Vet. App. 141 (1999). In an April 2013 rating decision, the AMC granted service connection for an ear/sinus disorder, claimed as residuals of a blown ear drum (10%, effective December 6, 2012). As the Veteran has not expressed disagreement with the rating, or effective date, assigned to this now service-connected disability, no issue pertaining to this disorder remains in appellate status at this time. Please note that 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 Audiological evaluation has revealed no worse than Level I hearing impairment in the Veteran's left ear and no worse than Level I hearing impairment in his right ear. CONCLUSION OF LAW The criteria for an initial compensable disability rating for the service-connected bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.85, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Here, the Veteran's claim arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that, once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Thus, no further notice is needed in this case. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). In this case, all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. The Veteran's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Veteran has not responded to VA's November 2012 request for information regarding any recent hearing loss treatment and/or evaluation. In addition, the Board has perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the claim. VA provided the Veteran with examinations in March 2010 and December 2012 to determine the nature and severity of his disability. 38 C.F.R. § 3.159(c)(4) (2012). When VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board found the March 2010 examination to be inadequate because the evaluation did not describe the functional effects of the Veteran's bilateral hearing loss. Accordingly, the Board requested another examination and opinion. In this regard, the Board finds the December 2012 VA examination report to be thorough and adequate upon which to base a decision of the compensable rating claim on appeal. The VA examiner reviewed the Veteran's claims folder, personally interviewed and examined the Veteran (including eliciting a history from the Veteran), and provided the information needed to evaluate the disability under the applicable rating criteria. Given the above, no further notice or assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Analysis of Initial Rating Claim Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). While the Board has been directed to consider only those factors contained wholly in the rating criteria [see Massey v. Brown, 7 Vet. App. 204 (1994)], the United States Court of Appeals for Veterans Claims (Court) has also found it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). When a veteran has disagreed with the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged" ratings (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119 (1999). The analysis below is therefore undertaken with consideration of the possibility that different "staged" ratings may be warranted for different time periods. Under the applicable criteria, ratings for hearing loss are determined in accordance with findings obtained on audiometric evaluation. Ratings for 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), together with the average hearing threshold level (as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second). To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2012). Hearing tests are to be conducted without hearing aids, and the results of the above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. Exceptional patterns of hearing impairment are addressed in 38 C.F.R. § 4.86 (2012). When the puretone 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the puretone 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. 38 C.F.R. § 4.86(b). A March 20, 2010 VA audiological examination report reflects complaints of decreased hearing. Audiometric testing revealed that the hearing threshold levels in decibels were 10, 25, 45 and 55 in the left ear and 10, 25, 50 and 65 in the right at 1000, 2000, 3000, and 4000 Hertz respectively. Puretone average was 33.75 in the left and 37.5 in the right. Maryland CNC speech recognition score was 96 percent in the left and 94 percent in the right. The examiner indicated that the Veteran's bilateral hearing loss has no effects on daily activities and no significant effects on occupation. Applying the criteria for evaluating hearing loss to the findings of the above VA audiometric evaluation results in designation of no worse than Level I hearing in the Veteran's left ear and no worse than Level I hearing in his right ear based on application of the reported findings to Table VI. These findings warrant a noncompenable rating under Table VII. A December 6, 2012 VA audiological examination report reflects that audiometric testing revealed that the hearing threshold levels in decibels were 15, 30, 55 and 55 in the left ear and 10, 30, 50 and 65 in the right at 1000, 2000, 3000, and 4000 Hertz respectively. Puretone average was 39 in the left and right. Maryland CNC speech recognition score was 94 percent in the left and 96 percent in the right. Applying the criteria for evaluating hearing loss to the findings of the above VA audiometric evaluation results in designation of no worse than Level I hearing in the Veteran's left ear and no worse than Level I hearing in his right ear based on application of the reported findings to Table VI. These findings warrant a noncompensable rating under Table VII. Moreover, audiological evaluations do not reflect puretone thresholds meeting the definition of an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86. The Board acknowledges, and has indeed considered, the Veteran's description of the problems caused by his hearing difficulties. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) (in addition to dictating objective test results, a VA audiologist's final report must fully describe the functional effects caused by a veteran's hearing loss disability). In this regard, the Board acknowledges that, here in the notice of disagreement (NOD) received in May 2010 in the current appeal, the Veteran stated that he has difficulty hearing in group settings due to background noise. Also, at the September 2012 hearing, the Veteran testified that he worked as a self-employed insurance adjuster and had difficulty hearing "[i]f there's more than one person in the room and I'm talking to two or three people... It's extremely difficult for me to hear when other people are talking." Hearing transcript, pg. 6. The December 2012 VA examiner acknowledged that the Veteran's hearing impairment causes him "difficult[y] . . . hear[ing] clients when he is doing his work as an insurance adjuster." Also acknowledged was the fact that the Veteran's bilateral hearing loss causes him difficulty hearing in different listening environments, especially noisy ones. Significantly, despite this finding however, and as has been discussed herein, the audiological evaluation has failed to demonstrate a compensable level of hearing loss. The Board in no way discounts the difficulties that the Veteran experiences as a result of his bilateral hearing loss. However, it must be emphasized that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiological evaluations of record. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Accordingly, the Board concludes that an initial compensable disability rating for the service-connected bilateral hearing loss is not warranted at any time since the effective date of service connection. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Additional Considerations The Board must also determine whether the schedular evaluation 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) (2012). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. 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 (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 or frequent periods of hospitalization. Thun v. Peake, 22 Vet. App. 111 (2008). When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1) (2012); Thun v. Peake, 22 Vet. App. 111 (2008). In the current appeal, the schedular evaluation is adequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected hearing loss, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's hearing impairment. As discussed above, the rating criteria consider loss of hearing acuity and degradation of speech discrimination. Moreover, there is no evidence that the Veteran's service-connected bilateral hearing loss results in an exceptional or unusual disability picture. There is no evidence of marked interference with employment. Although he has indicated hearing difficulties when there are multiple people in the room, there is no evidence that those difficulties have resulted in marked interference with employment or have markedly impacted his ability to maintain employment. He has also not required frequent hospitalizations for his hearing loss disability. Thus, there is no evidence in the medical records of an exceptional or unusual clinical picture. In short, there is nothing in the record to indicate that the Veteran's service-connected bilateral hearing loss causes impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board therefore finds that referral of this case for extra-schedular consideration is not warranted. Finally, although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable, as a result of his service-connected bilateral hearing loss. In fact, the December 2012 VA examination reports reflect that the Veteran continues to work. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised and need not be discussed further herein. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER An initial compensable disability rating for the service-connected bilateral hearing loss is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs