Citation Nr: 1320972	
Decision Date: 06/28/13    Archive Date: 07/05/13

DOCKET NO.  09-11 038	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUE

Entitlement to an initial compensable rating for bilateral hearing loss disability.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

L. Jeng, Counsel


INTRODUCTION

The Veteran served on active duty from August 1960 to August 1980. 

This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington.  In June 2012, the Board remanded this matter for further development, which has been completed, and the case has been returned to the Board for appellate consideration. 

Although the Veteran initially requested a travel board hearing, in an April 2012 correspondence, the Veteran indicated that he was withdrawing his request.  Under these circumstances, the regulations consider the hearing request to have been withdrawn.  38 C.F.R. § 20.704(e) (2012).  

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision.

As noted in the June 2012 remand, the Veteran has raised a claim to reopen a previously denied claim of entitlement to service connection for laryngeal cancer.  See May 2012 VA Form 21-0820, Report of General Information.  This matter is again REFERRED to the originating agency for appropriate action. 


FINDING OF FACT

The Veteran has demonstrated at worst Level II hearing acuity bilaterally.  


CONCLUSION OF LAW

The criteria for a compensable evaluation for a bilateral hearing loss disability have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86 (2012). 



REASONS AND BASES FOR FINDING AND CONCLUSION

Stegall Considerations

As noted above, the Board remanded this matter for further development in June 2012.  The Board specifically instructed the RO/Appeals Management Center (AMC) to contact the Veteran and obtain the names and addresses of all medical care providers who have treated him for his hearing loss disability since September 2011, afford him an examination for his disability, and to readjudicate the claim.  Subsequently, in a July 2012 letter, the AMC requested that the Veteran complete a VA Form 21-4142 for all outstanding records from medical care providers, he was provided an updated examination for his hearing loss disability in November 2012, and his claim was readjudicated in a December 2012 supplemental statement of the case.  Thus, there is compliance with the Board's remand instructions.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).

Duties to Notify and Assist

In correspondence dated in December 2007, prior to the May 2008 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012).  Specifically, the RO notified the Veteran of information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide.  The letter also notified the Veteran of the process by which initial disability ratings and effective dates are established as set forth in Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

The December 2007 letter provided the Veteran with the notice required for the initial claim of service connection for a hearing loss disability.  Service connection was subsequently granted, and the Veteran appealed the initial rating assigned.  In cases such as this, where service connection has been granted and an initial disability rating and effective date has 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/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  The Veteran bears the burden of demonstrating any prejudice from defective (or nonexistent) notice with respect to the downstream elements.  Goodwin v. Peake, 22 Vet. App. 128, 137 (2008).  That burden has not been met in this case, as neither the Veteran nor his representative has alleged such prejudice. 

VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012).  All identified and available treatment records have been secured.  As noted above, pursuant to the Board's remand, in a July 2012 letter, the AMC requested that the Veteran complete a VA Form 21-4142 to obtain records from all outstanding medical care providers.  To date, the Veteran has not returned the form or identified any outstanding medical evidence.  The United States Court of Appeals for Veterans Claims has held that "[t]he duty to assist is not always a one-way street.  If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 

As the Board will discuss in detail in the analysis below, the Veteran was provided with multiple VA examinations during the appeal period.  A review of the  VA examination reports reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate audiological evaluation of the Veteran, rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and provided sufficient information to evaluate the disability.   

Additionally, the Board recognizes 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 (2012).  The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow deficient, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  In this case, the Board observes that the most recent VA examiner who conducted the November 2012 examination addressed the functional effects of the Veteran's hearing loss disability, as will be discussed in detail below.  Thus, as contemplated by Martinak and directed by 38 C.F.R. § 4.10, the VA examiner discussed the functional effects of the Veteran's hearing problems in the most recent examination report. 

Additionally, the Veteran has not stated nor is there evidence indicating that there has been a material change in the severity of his hearing loss disability since he was last examined in November 2012.  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 VA examination was conducted.  See VAOPGCPREC 11-95 (April 7, 1995).  

The Board concludes that the examination reports of record are adequate for purposes of rendering a decision in the instant appeal.  See 38 CF.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Veteran and his representative have not contended otherwise.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  38 C.F.R. § 3.159(c) (4) (2012); Barr, 21 Vet. App. at 312

The Board additionally observes that all appropriate due process concerns have been satisfied.  See 38 C.F.R. § 3.103 (2012).  The Veteran has declined the opportunity to provide testimony before a Veterans Law Judge.  Therefore, the duties to notify and assist have been met.   

Hearing Loss Disability

The Veteran essentially contends that his bilateral hearing loss disability is more disabling than contemplated by the current non-compensable (zero percent) evaluation.  

Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition.  Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7 (2012).

The provisions of 38 C.F.R. § 4.31 indicate that in every instance where the minimum schedular evaluation requires residuals and the schedule does not provide for a zero percent evaluation, a zero percent evaluation will be assigned when the required symptomatology is not shown.  38 C.F.R. § 4.31 (2012).  

While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.  

Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second.  The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness.  VA audiometric examinations are conducted using a controlled speech discrimination test (Maryland CNC) together with the results of a puretone audiometry test.  The vertical lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  The horizontal columns in Table VI represent nine categories of decibel (dB) loss based on the pure tone audiometry test.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone dB loss. 

The percentage disability evaluation is then found from Table VII (in 38 C.F.R. 
§ 4.85), by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity.  For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent.  38 C.F.R. § 4.85 (2012). 

The provisions of 38 C.F.R. § 4.86(a) provide that 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.  The provisions of 38 C.F.R. § 4.86(b) provide that when the puretone threshold is 30 dB or less at 1,000 hertz, and 70 dB 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 is the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately. 

The relevant medical evidence of record includes VA examination reports and VA and private treatment records.  The Board notes that there are private audiograms dated in May 2007, September 2007, May 2009, and September 2011 associated with the record.  Although results of puretone audiometry test were recorded, there is no indication that the evaluations were conducted using a controlled speech discrimination test (Maryland CNC) in accordance with VA regulations to evaluate hearing loss.  Therefore, these reports will not be used to evaluate the Veteran's disability. 

The relevant evidence includes a May 2008 examination report for VA purposes, which noted the following pure tone thresholds, in decibels:



HERTZ


1000
2000
3000
4000
Avg.
RIGHT
20
30
60
65
43.75
LEFT
20
20
45
55
35

Speech audiometry revealed speech recognition ability of 90 percent in the right ear and 96 percent in the left ear.  The hearing impairment levels correspond to Level II in the right ear and Level I in the left ear under Table VI.  Intersecting Levels II and I under Table VII shows a non-compensable rating.  The Board has also considered the provisions of 38 C.F.R. § 4.86 governing exceptional patterns of hearing impairment.  However, since the audiological report fails to demonstrate that each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) in either ear is 55 decibels or more, or that pure tone threshold is 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz in either ear, evaluation for exceptional patterns of hearing impairment is not warranted.  See 38 C.F.R. § 4.86 (a), (b) (2012).  

A May 2009 VA audiological examination report noted the following pure tone thresholds, in decibels:



HERTZ


1000
2000
3000
4000
Avg.
RIGHT
40
45
70
75
57.5
LEFT
40
40
65
75
55

 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 92 percent in the left ear.  The hearing impairment levels correspond to Level II in the right ear and Level I in the left ear under Table VI.  Intersecting Levels II and I under Table VII shows a non-compensable rating.  As to the test results in May 2009, an exceptional pattern of hearing impairment has not been shown.  See 38 C.F.R. § 4.86 (a), (b) (2012).  

A September 2012 VA examination report indicated the following pure tone thresholds, in decibels:



HERTZ


1000
2000
3000
4000
Avg.
RIGHT
35
45
65
75
55
LEFT
35
35
55
75
50

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 90 and 100 percent in the left ear.  The hearing impairment levels correspond to Level I in the right ear, and Level II (90 percent speech recognition) and I (100 percent speech recognition) in the left ear under Table VI.  Intersecting Levels I and II (90 percent speech recognition), and Levels I and I (100 percent speech recognition) under Table VII shows a non-compensable rating.  Additionally, an exceptional pattern of hearing impairment has not been shown.  See 38 C.F.R. § 4.86 (a), (b) (2012).  

Most recently, the November 2012 examination report showed the following pure tone thresholds, in decibels:





HERTZ


1000
2000
3000
4000
Avg.
RIGHT
25
35
60
65
46
LEFT
30
30
50
65
44

Speech audiometry revealed speech recognition ability of 100 percent bilaterally.  The hearing impairment levels correspond to Level I bilaterally under Table VI.  Intersecting Level I and Level I under Table VII shows a non-compensable rating.  Additionally, an exceptional pattern of hearing impairment has not been shown.  See 38 C.F.R. § 4.86 (a), (b) (2012).  

In short, throughout the appeal, the Veteran's hearing loss disability has remained at a non-compensable level pursuant to VA regulations.      

It is important to note that the results of the VA audiometric testing do not signify the absence of a significant disability associated with the Veteran's hearing loss disability.  However, the degree to which this disability affects the average impairment of earnings, according to the Rating Schedule, results in a noncompensable rating.  See Id.; 38 U.S.C.A. § 1155 (West 2002).  Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  As such, an evaluation in excess of the current disability evaluation is not warranted. 

Although the Board finds that the medical evidence does not support the assignment of a higher rating for bilateral hearing loss, to the extent that his hearing is significantly impaired, the fact that the Veteran's hearing acuity is less than optimal does not by itself establish entitlement to a higher disability rating.  To the contrary, it is clear from the Rating Schedule that a higher rating can be awarded only when loss of hearing has reached a specified measurable level.  While sympathetic to the Veteran's complaints, the Board notes that entitlement to a compensable evaluation has not been demonstrated in the present case.

Based upon the guidance of the Court in Fenderson, the Board has considered whether a staged rating is appropriate.  However, the Veteran's symptoms do not warrant staged ratings as his disability has never been compensably disabling.   

The Board has not overlooked the Veteran's statements with regard to the severity of his disability.  The Veteran is competent to report on factual matters of which he had firsthand knowledge; and the Board finds that the Veteran's reports concerning symptomatology have been credible.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  The Board notes, with respect to the Rating Schedule, where the criteria set forth therein require medical expertise which the Veteran has not been shown to have, the objective medical findings and opinions provided by the Veteran's VA examination reports have been accorded greater probative weight.  Furthermore, evaluation of hearing loss is predominately based on clinical findings taken by medical measurements.  

The Board has also considered whether the Veteran is entitled to a greater level of compensation on an extraschedular 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).

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 evaluations for the service-connected disabilities is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's various disabilities with the established criteria shows that the rating criteria reasonably describe the Veteran's disability levels and symptomatology.  

Specifically as to hearing loss disability, the Veteran indicated that he had difficulty hearing in a small group of people and understanding dialogue on television or at church even with the use of his hearing aids.  The Board notes that the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability.  In support of this finding, the Board points to the regulatory history of 38 C.F.R. 
§§ 4.85 and 4.86.  In this regard, the rating criteria for hearing loss were last revised, effective June 10, 1999.  See 64 Fed. Reg. 25206 (May 11, 1999).  In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids.  VHA had found through clinical studies of veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment.  The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA.  The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting.  59 Fed. Reg. 17295 (April 12, 1994).  Accordingly, the Board finds that functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria.  Therefore, the Veteran's struggle to comprehend verbal conversations and other noises is a factor contemplated in the regulations and rating criteria as defined.  Accordingly, the Board determines that the Veteran's complaints of hearing difficulty have been considered under the numerical criteria set forth in the rating schedule. 

In short, the rating criteria reasonably describe the Veteran's disability levels and symptomatology.  The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b) (1) is not warranted.

Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009).  In Rice, the Court held that a claim for a total rating based on unemployability due to service- connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating.  In this case, the Veteran has not argued, and the record does not otherwise reflect, that his hearing loss disability renders him totally unemployable.  Accordingly, the Board concludes that a claim for TDIU has not been raised.

As the preponderance of the evidence is against the claim for an increased rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).



ORDER

Entitlement to an initial compensable rating for bilateral hearing loss disability is denied.




____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs