Citation Nr: 1320705 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 09-28 330 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to increases in the disability ratings assigned for bilateral hearing loss (currently assigned staged ratings of 10 percent from February 14, 2008 to August 17, 2010; and 20 percent from August 17, 2010). REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1969 to August 1973 and from November 1977 to January 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran's claims file is now in the jurisdiction of the Atlanta, Georgia RO. The Veteran testified at a hearing before the undersigned Veterans Law Judge in September 2012. A transcript of the hearing is of record. This matter was previously before the Board in March 2013 when it was remanded for additional development. Pursuant to the March 2013 remand order, the Veteran was afforded a VA examination. This examination appears to have occurred on, and was signed by the examiner on, April 15, 2013; however, the examination report is dated August 17, 2010. The Board concludes that the August 17, 2010 date is a typographical error on the part of the examiner. However, the RO relied on the incorrect date (August 17, 2010) in the subsequent April 2013 rating decision which granted an increased rating for the Veteran's bilateral hearing loss disability from 10 percent to 20 percent, effective the date of the examination, or August 17, 2010. Although the April 2013 rating decision was based on a typographical error, the Board will not disturb the effective date for the increased disability rating because it is favorable to the Veteran. FINDINGS OF FACT 1. Prior to August 17, 2010, the Veteran's service-connected bilateral hearing loss is productive of no higher than level IV hearing acuity in each ear. 2. Beginning August 17, 2010, the Veteran's service-connected bilateral hearing loss is shown to have level V hearing acuity in the right ear and level VI hearing acuity in the left ear. CONCLUSIONS OF LAW 1. Prior to August 17, 2010, a rating in excess of 10 percent is not warranted for the Veteran's service-connected bilateral hearing loss. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.85, 4.86 and Diagnostic Code 6100 (2012). 2. A 30 percent rating for the Veteran's service-connected bilateral hearing loss is warranted from August 17, 2010. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.85, 4.86 and Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Duty to Notify Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, a timely letter sent in March 2008 provided the notice contemplated by Dingess. The Veteran was provided with notice of the types of evidence necessary to establish a disability rating and an effective date for any rating that may be granted, and this letter explained how VA determines disability ratings and effective dates. The RO provided the Veteran with additional notice in October 2008 which listed the criteria for establishing a disability rating and was otherwise compliant with Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained pertinent treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran VA examinations in April 2008, August 2010, and April 2013 (as discussed above, incorrectly dated August 2010), and afforded the Veteran the opportunity to give testimony before the Board in September 2012. The Board finds these examination reports and opinions to be thorough, complete, and sufficient upon which to base a decision with regard to the Veteran's claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). All known and available treatment records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and his representative have not contended otherwise. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to adjudicate the issues addressed in the decision that follows and that no further action is necessary with respect to the issues adjudicated herein. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the Veteran as relevant to the issues adjudicated herein, and under these circumstances, no further action is necessary to assist the claimant with this appeal with respect to the issues adjudicated below. Legal Criteria, Factual Background and Analysis The Board notes that is has reviewed all of the evidence in the Veteran's claims file, as well as in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)(VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). In evaluating service-connected hearing loss, disability ratings are derived from mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). VA regulations require that an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. 38 C.F.R. § 4.85. Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test (Maryland CNC) and the average hearing threshold, as measured by pure tone audiometric tests at the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz. The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through level XI for profound deafness. An examination for hearing impairment for VA purposes must be conducted by a State-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Under 38 C.F.R. § 4.85, 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 pure tone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone average intersect. 38 C.F.R. § 4.85(b). The pure tone threshold average is the sum of the pure tone thresholds at 1,000, 2,000, 3,000 and 4,000 Hertz, divided by 4. This average is used in all cases to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.85(d). 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 rows and column intersect. 38 C.F.R. § 4.85(e). Table VI Numeric designation of hearing impairment based on pure tone 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 VIA Numeric designation of hearing impairment based only on pure tone 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 Table VII Percentage evaluation for hearing impairment (Diagnostic Code 6100): Poorer 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 VA regulations also provide that in cases of exceptional hearing loss, when the pure tone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 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). The Veteran submitted his claim for an increased evaluation for his bilateral hearing loss disability in February 2008. In support of his claim, the Veteran underwent a VA audiological examination in April 2008; at this time, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 50 70 70 65 LEFT 45 70 65 60 The pure tone threshold average was 64 in the right ear and 60 in the left ear. Speech audiometry revealed speech recognition ability of 80 percent in the right ear and 82 percent in the left ear. These results translate to Roman numeral designations of IV for the right ear, and IV for the left ear. 38 C.F.R. § 4.85, Table VI. The provisions of 38 C.F.R. § 4.86 for exceptional hearing loss are not applicable. Thus, applying Table VII, Diagnostic Code 6100, level IV for the right ear, and level IV for the left ear equates to a 10 percent disability rating. 38 C.F.R. § 4.85, Table VII. A 10 percent rating was assigned effective February 14, 2008, or the date the claim for an increased rating was received by the RO. The Veteran submitted the results of his U.S. Department of Labor, Office of Workers' Compensation Programs audiological evaluation from June 2008, which included hearing acuity results in graph form. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 55 70 75 65 LEFT 45 70 70 65 The pure tone threshold average was 66 in the right ear and 63 in the left ear. The private audiologist included speech recognition scores of 92 percent in the right ear and 92 percent in the left ear; however, it is unclear whether this speech recognition score was obtained using the Maryland CNC Test. Nevertheless, these results translate to a Roman numeral designations of II for both ears. 38 C.F.R. § 4.85, Table VI. The provisions of 38 C.F.R. § 4.86 for exceptional hearing loss are not applicable. Thus, applying Table VII, Diagnostic Code 6100, level II for both ears equates to a zero percent disability rating. 38 C.F.R. § 4.85, Table VII. In support of his claim the Veteran submitted a private audiological evaluation from August 2008, which included the results in graph form. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 40 60 70 70 LEFT 45 60 70 65 The pure tone threshold average was 60 for both ears. It is unclear if the Maryland CNC Test was used to determined speech recognition; however, the reported scores revealed speech recognition ability of 90 percent in the right ear and 100 percent in the left ear. These results translate to a Roman numeral designation of III for the right ear, and II for the left ear. 38 C.F.R. § 4.85, Table VI. The provisions of 38 C.F.R. § 4.86 for exceptional hearing loss are not applicable. Thus, applying level III for the right ear, and level II for the left ear equates to a zero percent disability rating. 38 C.F.R. § 4.85, Table VII. The Veteran underwent a VA examination in August 2010. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 50 70 65 65 LEFT 50 70 65 60 The pure tone threshold average was 63 in the right ear and 61 in the left ear. Speech audiometry revealed speech recognition ability of 80 percent in the right ear and 84 percent in the left ear. These results translate to a Roman numeral designation of IV for the right ear, and III for the left ear. 38 C.F.R. § 4.85, Table VI. The provisions of 38 C.F.R. § 4.86 for exceptional hearing loss are not applicable. Thus, applying level IV for the right ear, and level III for the left ear equates to a 10 percent disability rating. 38 C.F.R. § 4.85, Table VII. As discussed above, an additional VA examination was conducted in April 2013, however the date of the examination report is August 17, 2010. At this examination, the pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 55 60 70 65 LEFT 55 60 75 75 The pure tone threshold average was 63 in the right ear and 66 in the left ear. Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 68 percent in the left ear. These results translate to a Roman numeral designation of II for the right ear, and VI for the left ear. 38 C.F.R. § 4.85, Table VI. Thus, applying level II for the right ear, and level VI for the left ear equates to a 10 percent disability rating. 38 C.F.R. § 4.85, Table VII. However, the provisions of 38 C.F.R. § 4.86 for exceptional hearing loss are applicable because the pure tone thresholds for each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are 55 decibels or more. 38 C.F.R. § 4.86(a). Therefore, the Veteran is also entitled to a numeral designation under Table VIA. Under Table VIA, only pure tone threshold averages are considered. Therefore, a pure tone threshold average of 63 in the right ear is assigned a Roman numeral designation of level V, and a pure tone threshold average of 66 in the left ear is assigned a Roman numeral designation of level V. 38 C.F.R. § 4.85, Table VI. Under 38 C.F.R. § 4.86(a), each ear will be evaluated separately, and the higher numeral designation will be used in determining the percentage evaluations under Table VII. In this case, the right ear was designated level II under Table VI and level V under Table VIA; therefore the designation of level V will be used. As to the left ear, under Table VI level VI was designated, and under Table VIA level V was designated. Therefore, level VI will be designated for the left ear. Applying level V for the right ear, and level VI for the left ear equates to a 30 percent disability rating. 38 C.F.R. § 4.85, Table VII. This is the first instance in which the Veteran's service-connected bilateral hearing loss disability is shown to warrant a greater than 10 percent evaluation. It is clear from the medical evidence of record that a rating in excess of 10 percent for bilateral hearing loss is not shown prior to April 2013. As noted previously, because assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluation to assign. Lendenmann, 3 Vet. App. 345; 38 C.F.R. § 4.85, Tables VI, VIA and VII, Diagnostic Code 6100. Applying the audiological test results, the Board is compelled to conclude that the preponderance of the evidence is against a rating in excess of 10 percent for bilateral hearing loss prior to August 17, 2010. However, beginning August 17, 2010, the medical evidence of record does establish that a 30 percent rating is warranted based on exceptional patterns of hearing loss under 38 C.F.R. § 4.86(a). The Board acknowledges the judicial holding in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In that decision, the United States Court of Appeals for Veterans Claims (Court) held that a request for a total rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate 'claim' for benefits, but rather, can be part of a claim for increased compensation. In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a TDIU is warranted as a result of that disability. In the present case, the Board does not find an indication in the record that reasonably raised a claim of entitlement to a TDIU, specifically because on August 2010 VA examination (as correctly dated), the Veteran indicated he was retired. The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where scheduler evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, the schedular 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; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe a Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe a Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate a Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether a Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit squarely within the criteria found in the Diagnostic Code 6100 for the hearing loss disability at issue. In short, the rating criteria contemplate not only his symptoms but the severity of his disability. More specifically, exceptional patterns of hearing loss, which the Veteran exhibits, are contemplated and evaluated under 38 C.F.R. § 4.86. For these reasons, referral for extraschedular consideration is not warranted. ORDER Entitlement to a rating in excess of 10 percent for the Veteran's service-connected bilateral hearing loss, prior to August 17, 2010, is not warranted. The appeal is denied as to this issue. A 30 percent, but not higher rating is granted for the Veteran's service-connected bilateral hearing loss, effective August 17, 2010, subject to the regulations governing payment of monetary benefits. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs