Citation Nr: 1320354	
Decision Date: 06/24/13    Archive Date: 07/02/13

DOCKET NO.  10-15 803	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an initial evaluation in excess of 30 percent for bilateral hearing loss prior to March 19, 2013, and in excess of 50 percent from March 19, 2013.


REPRESENTATION

Appellant represented by:	Christopher Loiacono, Agent


ATTORNEY FOR THE BOARD

Joseph R. Keselyak, Counsel



INTRODUCTION

The Veteran had periods of active duty for training from November 1947 to August 1973.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In a June 7, 2010 decision, the Board denied entitlement to an initial evaluation in excess of 30 percent for bilateral hearing loss.  On June 3, 2010, the Board received evidence, from his newly appointed representative, which consisted of private audiograms or other records pertaining to the Veteran's hearing loss.  In August 2010, the Veteran submitted a motion for reconsideration of the June 2010 decision, stating that the Veteran had submitted additional evidence prior to the Board's June 2010 decision, which evidence was not considered by the Board.  In November 2010, the Board denied the motion.  The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).

In July 2011, the Veteran and the Secretary of VA (parties) filed a joint motion to vacate the June 2010 Board decision and remand it, stating that the Board had received additional evidence from the Veteran on May 20, 2010 with a waiver, and the Board's June 2010 decision had failed to address the additional evidence.  The Court granted the motion that same month.

In December 2011 this matter was last before the Board at which time it was remanded for further development.  That development has been substantially completed.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).

In an April 2013 rating action, the RO increased the evaluation of the Veteran's bilateral hearing loss to 50 percent disabling effective March 19, 2013.  Because the maximum benefit was not granted, the issue of entitlement to a higher evaluation remains on appeal.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).  The case has been returned to the Board for further appellate review.
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).


FINDINGS OF FACT

1.  Prior to October 15, 2012, the Veteran had hearing loss in the right ear with a Numeric Designation of VI and hearing loss in the left ear with a Numeric Designation of VII, at worst.

2.  From October 15, 2012, through March 18, 2013, the Veteran had hearing loss in the right ear with a Numeric Designation of VIII and hearing loss in the left ear with a Numeric Designation of VIII. 

3.  From March 19, 2013, the Veteran has had hearing loss in the right ear with a Numeric Designation of VII and hearing loss in the left ear with a Numeric Designation of IX, at worst.


CONCLUSIONS OF LAW

1.  Prior to October 15, 2012, an initial evaluation in excess of 30 percent for bilateral hearing loss is not established.  38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.385, 4.1, 4.7, 4.85, Tables VI, VIa, VII; 4.86, Diagnostic Code 6100 (2012).

2.  From October 15, 2012, an initial evaluation of 50 percent, but no greater, for bilateral hearing loss is established.  38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.385, 4.1, 4.7, 4.85, Tables VI, VIa, VII; 4.86, Diagnostic Code 6100 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Notice and Assistance

Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim.  In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2011); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

In a case such as this, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements.  Goodwin v. Peake, 22 Vet. App. 128 (2008).  The Veteran has not alleged any prejudice; thus, that burden has not been met in this case.

Nevertheless, the Board notes that VA has fully complied with the notice provisions of 38 U.S.C.A. § 5103(a).  In a letter dated in October 2009 the Veteran was advised of how to substantiate his claim for service connection, his and VA's respective duties in developing the claim and as to the disability rating and effective date elements of his claim.

VA has obtained the Veteran's service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, and obtained medical opinions as to the severity of his bilateral hearing loss.  All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise.  

The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that VA examinations obtained in this case are adequate.  They are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints, symptoms and history.  Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue addressed in this decision has been met. 38 C.F.R. § 3.159(c)(4).

VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time.

Laws and Regulations

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012).  Separate rating codes identify the various disabilities. 38 C.F.R. Part 4.  Where there is a question as to which of two evaluations shall 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.  38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran.  38 C.F.R. § 4.3.  The VA schedule of ratings 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).  38 C.F.R. Section 3.321(b)(1) provides that, in exceptional circumstances, where the schedular evaluations are found to be inadequate, the veteran may be awarded a rating higher than that encompassed by the schedular criteria.  According to the regulation, an extraschedular disability rating is warranted 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."  Id.

An appeal from the initial assignment of a disability rating requires consideration of the entire time period involved, and contemplates "staged ratings" where warranted.  See Fenderson v. West, 12 Vet. App. 119 (1999).  As this case involves the appeal from an initial grant of service connection, the regulations providing for an effective date up to 1 year prior in the case of a claim for increased compensation of an already service-connected disability are not for application.  38 C.F.R. § 3.400(o)(2); Id.  

Evaluations of hearing impairment range from zero to 100 percent based on organic impairment of hearing acuity.  Auditory acuity is gauged by examining the results of controlled speech discrimination tests, together with the results of puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz.  To evaluate the degree of disability, the rating schedule establishes 11 auditory acuity levels ranging from level I, for essentially normal acuity, through level XI, for profound deafness.  Tables V, VIa and VII are used to calculate the rating to be assigned. 38 C.F.R. § 4.85.

Under 38 C.F.R. § 4.86, when the puretone threshold at each of the four specified frequencies of 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.  38 C.F.R. § 4.86(a).  Additionally, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 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 Roman numeral.  38 C.F.R. § 4.86(b).



Facts

The Veteran filed his claim for service connection of bilateral hearing loss in September 2009.  In November 2009 he was afforded a VA examination.  On VA audiological testing pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
65
65
70
80
LEFT
35
65
65
70
75

Pure tone averages were 70 for the right ear and 68.75 for the left ear.  Speech audiometry revealed speech recognition ability of 68 percent in the right ear and of 66 percent in the left ear.  The audiological examiner addressed the functional effect of the Veteran's hearing loss by noting no significant occupational effects therefrom.  See Martinak v. Nicholson, 21 Vet. App. 447, 454-55 (2007).  

In a December 2009 statement the Veteran related that he disagreed with the assigned 30 percent evaluation for his bilateral hearing loss, awarded in the aforementioned November 2009 rating decision.  He related that he had extensive hearing loss, which was approaching almost total deafness.  He therefore requested an increased evaluation.  

In a March 2010 statement the Veteran continued his disagreement.  He particularly related that the calculations used to determine the degree of his hearing loss and percent of disability appeared to be in error.  

In furtherance of attempting to substantiate his claim, the Veteran submitted a number of private audiograms.  As noted by the Board in its December 2011 remand, it was unclear from a review of these audiograms whether the private testing met the criteria set out by VA in evaluating hearing loss.  See 38 C.F.R. § 4.85 (2012) (requiring that an examination for hearing impairment for VA purposes be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and puretone audiometry test).  These documents consisted of 3 records - 2 apparently from "Hearing Solutions" and 1 from "Beltone."  In the December 2011 remand the Board sought to develop whether these audiometric records met the criteria for evaluation of hearing loss.  See Savage v. Shinseki, 24 Vet. App. 259 (2011).  

In this regard, the Board sought to develop the "Beltone" records to see if they could be used in the evaluation of the Veteran's bilateral hearing loss.  An August 2012 Report of Contact (VA Form 21-0820) documents that the RO contacted the Veteran and he indicated that he could not "respond on Beltone."  In a subsequent Report of Contact, dated in October 2012, the RO documented that the Veteran informed them that the audiometrics from Beltone were not obtained by a state-licensed audiologist, but rather "temporary help" that was trained to do hearing tests.  He stated that he did not desire VA to develop these records any further.  As the Veteran reports the testing was not conducted by a state-licensed audiologist, the criteria set forth in 38 C.F.R. § 4.85 are not met.  As a result the Board finds that the Beltone test results are not entitled to any probative weight.  

In furtherance of attempting to substantiate his claim, the Veteran submitted a private audiogram from Central Florida Hearing and Balance Center dated in July 2012, along with a VA Form 21-4142 received in September 2012 that contained information relating to VA's requirements under 38 C.F.R. § 4.85.  The information provided, however, was not obtained from Central Florida Hearing and Balance Center, but was rather provided by the Veteran.  Saliently, in a VA Form 21-4142, dated subsequently in October 2012, this provider indicated that the audiogram was not obtained in accordance with VA's requirements, in that the speech discrimination test was not a Maryland CNC test, but rather a "W-22 order by difficulty list test."  The Board finds competent and probative the reply from the facility indicating that it was not the Maryland CNC test that was used.  The Veteran's reports to the contrary are not credible in light of the facility's reply to VA.  Accordingly, the Board finds that the audiological testing does not comply with the requirements set forth in 38 C.F.R. § 4.85 and the test results are not entitled to any probative weight.  

In accordance with the Board's remand directives, the RO also sought to determine if the audiometrics from Hearing Solutions met the criteria set out by VA in evaluating hearing loss.  In this regard, there is of record a VA Form 21-4142 provided by the Veteran to the RO with information that purports to show that these audiometrics are in accordance with VA's requirements.  However, Hearing Solutions itself never responded to the RO's 2 requests.  38 C.F.R. §§ 3.159(c)(1).  The Veteran was informed of this by way of a December 2012 letter.  He was told that VA was making a second request to the provider and that it was ultimately his responsibility to ensure that VA received the information.  In accordance with 38 C.F.R. § 3.159, he was also informed that he should send the information or evidence as soon as he could and that VA could make a decision on his claim after 30 days.  As the information requested was not obtained, the Board finds that the test results are not entitled to probative weight.  38 C.F.R. § 4.85.

Also in furtherance of substantiating his claim, the Veteran submitted audiometrics from Dr. B. Handy, Au.D. dated October 15, 2012.  These audiometrics conform to VA's requirements.  Id.  On audiological testing pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
65
80
80
85
100
LEFT
65
80
80
80
95

Pure tone averages were 86.25 for the right ear and 83.75 for the left ear.  See 38 C.F.R. § 4.85(d) (stating that puretone threshold average is equal to the sum of puretone thresholds at 1000, 2000, 3000 and 4000 divided by 4).  Speech audiometry (Maryland CNC) revealed speech recognition ability of 64 percent in the right ear and of 56 percent in the left ear.  

Also, in furtherance of substantiating his claim, and in accordance with the Board's remand directives, the Veteran was afforded a VA examination on March 19, 2013.  On VA audiological testing pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
55
75
80
75
105
LEFT
50
75
80
75
105

Pure tone averages were 84 for the right ear and 84 for the left ear.  Speech audiometry revealed speech recognition ability of 56 percent in the right ear and of 48 percent in the left ear.  The audiological examiner addressed the functional effect of the Veteran's hearing loss by noting that the Veteran felt that it was almost impossible to understand other people in a conversation, even with his hearing aids and that the Veteran related that without hearing aids he could not hear a thing.  See Martinak v. Nicholson, 21 Vet. App. 447, 454-55 (2007).  

Analysis

Effective October 15, 2012, the date of the audiogram from Dr. Handy, a 50 percent evaluation is warranted for bilateral hearing loss.  The audiometrics from Dr. Handy qualify as demonstrating an exceptional pattern of hearing impairment in that the puretone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hz) is 55 decibels or more.  38 C.F.R. § 4.86(a).  However, when either Table VI or Table VIa is applied, a numeric designation of VIII is yielded for each ear.  When these numeric designations are applied to Table VII a 50 percent evaluation results.  Thus, as of October 15, 2012, a 50 percent evaluation is substantiated.  38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012).

As outlined above, the probative audiometrics provided on examination in November 2009 likewise demonstrate an exceptional pattern of hearing impairment.  38 C.F.R. § 4.86(a).  When these audiometrics are applied to Table VI a numeric designation of VI results for the right ear and a numeric designation of VII results for the left ear.  When these audiometrics are applied to Table VIa a numeric designation of VI results for the right ear and a numeric designation of V results for the left ear.  When the first set of these results is applied to Table VII a 30 percent evaluation is yielded.  When the second set of these results is applied to Table VII a 20 percent evaluation is yielded.  Accordingly, prior to October 15, 2012, an evaluation in excess of 30 percent is not warranted.  38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012).

As noted above, the Veteran was afforded a VA audiologic examination on March 19, 2013, which the RO has utilized in awarding a 50 percent evaluation.  These audiometrics also demonstrate an exceptional pattern of hearing impairment.  38 C.F.R. § 4.86(a).  When these audiometrics are applied to Table VII a numeric designation of VIII results for the right ear and a numeric designation of IX results for the left ear.  When these audiometrics are applied to Table VIa a numeric designation of VIII results for the right ear and a numeric designation of VIII results for the left ear.  When either of these set of results is applied to Table VII a 50 percent evaluation results.  Accordingly, an evaluation in excess of 50 percent is not established.  Id.  

In sum, the Board finds that staged ratings are warranted as the probative test results show that the criteria for different ratings are met for distinct periods of time.  Prior to October 15, 2012, the probative evidence does not show that the criteria for a 30 percent evaluation are met and thereafter the probative evidence does not show that the criteria for a rating in excess of 50 percent are met.  The first probative evidence showing the criteria for a 50 percent rating are met is the audiological testing that was accomplished on October 15, 2012.  

The Board has also considered referral for extraschedular consideration.  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) (2012).  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 evaluation for the service-connected condition is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's bilateral hearing loss with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology.  The criteria particularly contemplate his specific symptoms of having difficulty hearing and understanding conversations and therefore address the severity of the condition.

In short, there is nothing in the record to indicate that the service-connected disability on appeal 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, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.



ORDER

Prior to October 15, 2012, an initial evaluation in excess of 30 percent for bilateral hearing loss is denied.  

From October 15, 2012, an initial evaluation of 50 percent, but no greater, for bilateral hearing loss is granted, subject to the laws and regulations governing the award of monetary benefits.  



____________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs