Citation Nr: 1320940	
Decision Date: 06/28/13    Archive Date: 07/05/13

DOCKET NO.  13-05 583	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Entitlement to an initial disability rating higher than 20 percent for bilateral hearing loss prior to March 14, 2013.

2.  Entitlement to a disability rating higher than 40 percent for bilateral hearing loss since March 14, 2013.


REPRESENTATION

Veteran represented by:	Missouri Veterans Commission


ATTORNEY FOR THE BOARD

S. B. Mays, 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 February 1949 to February 1950 and from March 1955 to May 1973.

This matter came to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in April 2011 of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which in pertinent part, granted service connection for bilateral hearing loss, assigning a 20 percent rating beginning June 30, 2010, the date of the claim for entitlement to service connection.

In a March 2013 rating decision, the RO increased the rating for bilateral hearing loss from 20 to 40 percent, beginning March 14, 2013.  As that increase did not constitute a full grant of the benefit sought, the Veteran's hearing loss claim remains in appellate status.  See AB v. Brown, 6 Vet. App. 35, 38- 39 (1993).

Potential entitlement to a total disability evaluation based on individual unemployability  (TDIU) is an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009).  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  In the instant case, however, the Veteran has not alleged and the evidence does not show that he is unemployable due to his bilateral hearing loss.  The record shows that he is currently retired and a March 2013 VA examiner indicated that the Veteran's hearing loss does not impact the ordinary conditions of his daily life, including his ability to work.  A claim for a TDIU has not been raised in this case. 

However, the Veteran has raised the issue of entitlement to an earlier effective date for the grant of service connection for his bilateral hearing loss.  See April 2011 correspondence, a February 2013 VA Form-9, and an April 2013 VA Form-9.  Though it appears that development was contemplated as reflected in a March 2013 deferred rating decision, adjudication of this earlier effective date claim has not yet been accomplished by the Agency of Original Jurisdiction (AOJ).  Therefore, it is REFERRED to the AOJ for appropriate action. 


FINDINGS OF FACT

1.  Prior to March 14, 2013, the Veteran at worst had level VI hearing acuity in the right ear, and level VI hearing acuity in the left ear. 

2.  Since March 14, 2013, the Veteran at worst has level VII hearing acuity in the right ear, and level VIII hearing acuity in the left ear.


CONCLUSIONS OF LAW

1.  Prior to March 14, 2013, the criteria for an initial rating higher than 20 percent for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.85, 4.86, Part 4, Diagnostic Code 6100 (2012). 

2.  Since March 14, 2013, the criteria for a rating higher than 40 percent for bilateral hearing loss are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.85, 4.86, Part 4, Diagnostic Code 6100 (2012


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board will discuss the relevant law which it is required to apply.  This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit  (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). 

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions.  38 U.S.C.A. 
§ 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction.  The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). 

Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

The Veteran's increased rating claim for bilateral hearing loss arises from his disagreement 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). 

VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The claims file contains service treatment records, VA medical evidence, and private medical evidence.  Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim.  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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Analysis of the Claims

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. 
Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder.  38 U.S.C.A. § 1155 (West 2002).  Evaluation of a service-connected disorder requires a review of the Veteran's entire medical history regarding that disorder.  38 C.F.R. §§ 4.1, 4.2 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  See 38 C.F.R. § 4.3.  The Veteran's entire history is reviewed when making disability ratings.  See 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). 

Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the current severity of the disorder.  Fenderson v. West, 12 Vet. App. 119 (1999).  In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it is possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007).

The assignment of a disability rating for hearing impairment is derived by a purely mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). 

The severity of a hearing loss disability is determined by comparisons of audiometric test results with specific criteria set forth at 38 C.F.R. § 4.85. Evaluations of bilateral defective hearing 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 of 1,000, 2,000, 3,000, and 4,000 Hertz (cycles per second). 

The Rating Schedule allows for such audiometric test results to be translated into a numeric designation ranging from Level I, for essentially normal acuity for VA compensation purposes, to Level XI, for profound deafness, in order to evaluate the degree of disability from bilateral service-connected defective hearing.  An examination for hearing impairment 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 are to be conducted without the use of hearing aids.  38 C.F.R. § 4.85. 

Under the exceptional patterns of hearing loss, 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 at 1000 Hertz is 30 decibels or less, and the threshold at 2000 Hertz is 70 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, and will elevate the determined Roman numeral to the next higher numeral.  38 C.F.R. § 4.86(b). 

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470   (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77.

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  In Jefferson v. Principi, 271 F.3d 1072   (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a)  (West 2002).  The United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 

In support of his June 2010 service connection claim, the Veteran submitted a letter dated in August 2010 from the owner of Beltone Hearing Aid Service.  It was noted that the Veteran's hearing test in January 2008 showed that the left ear was 44 percent poorer in understanding, but with two hearing aids, the Veteran received 72 percent understanding, binaurally.  The Veteran underwent an audiogram and the report is included in the claims file, but the pure tone thresholds were not interpreted, and there is no indication that the Maryland CNC list was used in testing the Veteran's speech discrimination (72 percent in the right ear and 44 percent in the left ear).  See 38 C.F.R. § 4.85(a).  Therefore, the January 2008 audiogram results are inadequate for rating purposes.
 
The record also contains a private audiology evaluation report dated in February 2011 from the hearing clinic at the University of Missouri, Department of Otolaryngology.  It shows the Veteran's report of worsening hearing difficulty, greater on the left.  An attached audiogram shows speech discrimination scores of 64 percent in the right ear, and 68 percent in the left ear.  Diagnosis was severe sensorineural hearing loss in the right ear and moderate to severe sensorineural hearing loss in the left ear.  The February 2011 private audiogram results are not adequate for rating purposes; however, as the pure tone thresholds were not interpreted, and there is no indication that the Maryland CNC list was used in testing the Veteran's speech discrimination.  See 38 C.F.R. § 4.85(a).

In May 2011, the Veteran was afforded a VA compensation examination in connection with his service connection claim.   Pure tone thresholds, in decibels, were as follows:




HERTZ



AVG
1000
2000
3000
4000
RIGHT
71.25
70
70
70
75
LEFT
67.5
60
65
70
75

Speech recognition score (Maryland CNC word list) was 72 percent in the right ear, and 76 percent in the left ear.  Diagnosis was moderately severe to severe sensorineural hearing loss in the right eat, and moderate sensorineural hearing loss in the left ear.  The examiner related the Veteran's bilateral hearing loss to acoustic trauma in service.

Considering the March 2011 VA audiometric results, the Veteran exhibited an  exceptional hearing pattern bilaterally, as the pure tone thresholds at each of four specified frequencies are greater than 55 decibels in each ear.  Therefore, the Board must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  See 38 C.F.R. § 4.86.

In the right ear, the Veteran's pure tone threshold average of 71.25 with speech recognition ability of 72 percent warrants level VI hearing acuity using Table VI, as well as Table VIa.  See 38 C.F.R. § 4.85, Tables VI, VIa, Diagnostic Code 6100. 

In the left ear, the Veteran's pure tone threshold average of 67.5 with speech recognition ability of 76 percent warrants level IV hearing acuity using Table VI and level V hearing acuity using Table VIa.  

Applying the higher Roman numeral designations (level VI in the right ear, and level V in the left ear) to Table VII, the result is a 20 percent rating for bilateral hearing impairment. See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100.  The record does not contain any additional audiometric results adequate for rating purposes prior to March 14, 2013.  Consequently, the criteria for a rating higher than 20 percent are not met under Diagnostic Code 6100 prior to March 14, 2013.
  
On March 14, 2013, the Veteran underwent an additional VA audiology examination.  Pure tone thresholds, in decibels, were as follows:




HERTZ



AVG
1000
2000
3000
4000
RIGHT
75
75
75
70
80
LEFT
72
65
70
75
80

Speech recognition score (Maryland CNC word list) was 60 percent in the right ear, and 56 percent in the left ear.  Diagnosis was bilateral sensorineural hearing loss.  

Based on the March 2013 audiometric results, the Veteran again exhibited an  exceptional hearing pattern, bilaterally, as his pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) were greater than 55.

In the right ear, the Veteran's pure tone threshold average of 75 with speech recognition ability of 60 percent warrants level VII hearing acuity using Table VI, and level VI using Table VIa.  See 38 C.F.R. § 4.85, Tables VI, VIa, Diagnostic Code 6100. 

In the left ear, the Veteran's pure tone threshold average of 72 with speech recognition ability of 56 percent warrants level VIII hearing acuity using Table VI and level VI hearing acuity using Table VIa.  

Applying the higher (VII in the right ear and VIII in the left ear) Roman numeral designations to Table VII, the result is a 40 percent rating for bilateral hearing impairment.  See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100.  The record does not contain any additional audiometric results during the applicable appeal period.  Consequently, the criteria for a rating higher than 40 percent are not met under Diagnostic Code 6100 since March 14, 2013.  
  
The Veteran is competent and credible to report that he experiences diminished hearing.  However, in determining the actual degree of hearing impairment, the medical evidence prepared by a skilled neutral professional is more probative evidence and thus the audiometric findings are more probative of the degree of hearing impairment. 

Moreover, the assignment of disability ratings for hearing impairment is derived at by a mechanical application of the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann, supra.  In this case, the numeric designations produce a 20 percent rating prior to March 14, 2013, and a 40 percent rating thereafter.  38 C.F.R. Part 4, Diagnostic Code 6100.  Accordingly, the claim for higher ratings must be denied.  

The rating schedule represents as far as is practicable, the average impairment of earning capacity.  Ratings will generally be based on average impairment. See 38 C.F.R. § 3.321(a), (b)(2012).  In exceptional cases an extra-schedular rating may be provided.  38 C.F.R. § 3.321.  The Court has set out a three-part test, based on the language of this VA regulation, for determining whether a Veteran is entitled to an 
extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of his disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

Here, however, the schedular rating criteria contemplate the extent and severity of the Veteran's symptoms, which primarily consist of difficulty hearing.  The symptoms associated with the Veteran's bilateral hearing loss are not shown to cause any impairment that is not already contemplated by 38 C.F.R. § 4.85.  The Board, then, is not obligated to refer this claim to the Under Secretary for Benefits or to the Director of Compensation and Pension (C&P) Service for 
extra-schedular consideration. Bagwell v. Brown, 9 Vet. App. 237, 238-9   (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996).


ORDER

An initial disability rating higher than 20 percent for bilateral hearing loss prior to March 14, 2013, is denied. 

A disability rating higher than 40 percent for bilateral hearing loss beginning March 14, 2013, is denied.


____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs