Citation Nr: 1320533 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 09-44 404 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial compensable rating for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to August 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for a bilateral hearing loss disability with a noncompensable disability rating, effective from April 14, 2003. In reviewing the Veteran's appeal for a compensable rating, the Board has not overlooked the holding of the States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that claims for higher evaluations also include a claim for a total rating based on individual unemployability (TDIU) when the appellant claims he is unable to work due to a service connected disability). However, the Board notes that the Veteran has not indicated that he is unemployed or unemployable as result of his service-connected bilateral hearing loss disability. Additionally, the evidence does not suggest that the Veteran is unemployable because of his service-connected bilateral hearing loss disability. As such, the Board finds that Rice is not applicable to the current appeal. There must be cogent evidence of unemployability in the record. See Rice, 22 Vet. App. 447, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). Accordingly, the Board finds that issue of entitlement to TDIU has not been raised. FINDING OF FACT Audiometric testing has revealed no worse than Level I hearing in the Veteran's right ear and Level I hearing in the Veteran's left ear. CONCLUSION OF LAW The criteria for a compensable rating for a bilateral hearing loss disability have not been met or approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.85, 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, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (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) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. The Veterans Claims Assistance Act (VCAA) With regard to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Under the Veterans Claims Assistance Act of 2000 (VCAA), when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). For initial rating claims, where service connection has been granted and the initial rating has been assigned, the claim of service connection has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once a claim for service connection has been substantiated, the filing of a notice of disagreement (NOD) with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. See Dingess v. Nicholson, 19 Vet. App. 473, 490-491; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board also concludes that VA's duty to assist has been satisfied. All of the Veteran's VA and private treatment records have been obtained to the extent possible and associated with the claims file. The Veteran has at no time referenced any further outstanding records that he wanted VA to obtain. With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The RO provided the Veteran with VA examinations with regard to his service-connected bilateral hearing loss disability in June 2004 and November 2007. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). There is no objective evidence indicating that there has been a material change in the severity of this service-connected disability since he was last examined. 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 examination was conducted. See VAOPGCPREC 11-95. The report of these examinations reflects that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate audiological testing, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The examinations were performed by an audiologist. The information obtained during these examinations is sufficient to rate the Veteran's disability under the appropriate diagnostic criteria. The Board also observes 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 (2011). Here, the record includes the Veteran's statements concerning its effects. In light of the foregoing, the Board concludes that these examination reports are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). III. Increased Initial Rating A. General Law and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Where there is a question as to which of two evaluations shall be applied, the higher rating 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 (2012). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods based on the facts found - a practice known as "staged" ratings. Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examination. Evaluations of 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 1,000; 2,000; 3,000; and 4,000 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. Hearing tests will be conducted without hearing aids, and the results of 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. When the pure tone 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 pure tone 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). B. Factual Background The report of a private audiological examination from April 2003 contains the Veteran's complaints of impaired hearing. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 25 25 40 70 40 LEFT 35 30 55 60 55 Speech discrimination scores of 64 percent in the right ear and 68 percent in the left ear were recorded. However, the examination report does not indicate whether the Maryland CNC word list was used in this testing. Another private audiological examination report from July 2003 contains the following pure tone thresholds, in decibels: HERTZ 1000 2000 3000 4000 AVG RIGHT 25 35 65 85 53 LEFT 25 40 65 75 51 Speech discrimination scores of 96 percent in the right ear and 100 percent in the left ear were recorded. However, the examination report does not indicate whether the Maryland CNC word list was used in this testing. The July 2003 examiner indicated that the Veteran had a mild sloping to profound sensorineural hearing loss bilaterally, slightly worse in the right ear. The audiologist indicated that the Veteran could expect to have difficulty understanding in most listening environments, especially when speech is at a distance or in a background of noise. On VA compensation and pension examination in June 2004, the examiner noted that the Veteran had worked as a mail clerk, industrial engineer, and assembler. No history of aural pathology, dizziness, familial hearing loss, diabetes or ototoxic medications was reported. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 15 20 50 70 39 LEFT 15 20 50 60 36 Speech audiometry testing using a Maryland CNC word list revealed speech recognition ability of 92 percent in the right ear and 100 percent in the left ear. The examiner opined that the Veteran had normal hearing through 2000 Hertz that dropped to a moderate to moderately severe sensorineural hearing loss in both ears. In August 2007, two of the Veteran's neighbors, R.V.M and K.M., stated that they had observed the Veteran's difficulty hearing conversation. They commented that the Veteran watched television at a noise level that was unpleasant for other people. T.W., the Veteran's spouse, added that she constantly had to repeat herself for the Veteran to understand her. A private audiology record from August 2007 reflects that the Veteran had a mild sloping to profound sensorineural hearing loss bilaterally. This treatment record contains the following pure tone thresholds, in decibels: HERTZ 1000 2000 3000 4000 AVG RIGHT 20 35 70 85 53 LEFT 30 35 65 80 53 Speech discrimination scores of 96 percent in the right ear and 88 percent in the left ear were recorded. However, the examination report does not indicate whether the Maryland CNC word list was used in this testing. On VA compensation and pension examination in November 2007, the Veteran reported experiencing difficulty understanding speech. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 15 20 60 80 44 LEFT 15 20 60 75 43 Speech audiometry testing using a Maryland CNC word list revealed speech recognition ability of 100 percent in the right ear and 96 percent in the left ear. The examiner opined that the Veteran had moderately severe to severe sensorineural hearing loss in both ears. C. Analysis As a preliminary matter, the Board acknowledges the April 2003, July 2003, and August 2007 private audiograms. These examinations include both puretone thresholds findings and speech recognition scores. However, because testing does not indicate that the scores are based on the Maryland CNC test, the audiogram is inadequate for rating purposes. See 38 C.F.R. § 4.85. Table VIA provides for numeric designations of hearing impairment based only on puretone threshold average; however, the Table may only be used as specified in 38 C.F.R. §§ 4.85 and 4.86, circumstances that are not applicable in this case. Specifically, the examiner did not certify that the use of the speech discrimination test would not be appropriate and the Veteran does not exhibit exceptional patterns of hearing loss. Accordingly, the private audiograms are inadequate for rating purposes. The Board observes that the pure tone thresholds recorded on all of the audiological evaluations do not reflect exceptional hearing impairment as defined by regulation, as the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz (Hz)) is not 55 decibels or more, and the pure tone threshold is not 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz for either ear. Thus, Table VIa is not for application. 38 C.F.R. § 4.86. Consequently, the Board will evaluate the Veteran's hearing using Table VI. Applying the method for evaluating hearing loss to the results of the Veteran's June 2004 audiological evaluation reveals Level I hearing in the right ear and Level I hearing in the left ear, based on application of the reported findings to Table VI. Application of these findings to Table VII corresponds to a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. Applying the method for evaluating hearing loss to the results of the Veteran's November 2007 audiological evaluation reveals Level I hearing in the right ear and Level I hearing in the left ear, based on application of the reported findings to Table VI. Application of these findings to Table VII corresponds to a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. To the extent that the Veteran and other lay persons contend that his bilateral hearing loss is more severe than currently evaluated, the Board observes that the Veteran and other lay persons of record, while competent to report symptoms such as difficulty hearing and having others talk louder, are not competent to report that his hearing acuity is sufficient to warrant a compensable evaluation under VA's tables for rating hearing loss disabilities. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The evidence shows that the Veteran experiences difficulty hearing. The current grant of service connection represents an acknowledgement that the Veteran has a bilateral hearing loss disability as a result of his service. The Board has carefully considered the Veteran's assertions and other lay statements of record and in no way discounts the Veteran's asserted difficulties or his assertions that his bilateral hearing loss should be rated higher. 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 audiology studies of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). In other words, the Board is bound by law to apply VA's rating schedule based on the audiometry results. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. As such, a compensable disability rating for bilateral hearing loss is not warranted. In addition, the Board has considered whether the Veteran is entitled to greater levels of compensation on an extra-schedular 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). 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 first 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 bilateral hearing loss disability is inadequate. A comparison between the levels of severity and symptomatology of the considered disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The Board finds that the evidence does not demonstrate an exceptional or unusual clinical picture beyond that contemplated by the rating criteria. 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 Entitlement to an initial compensable rating for a bilateral hearing loss disability is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs