Citation Nr: 1320990	
Decision Date: 06/28/13    Archive Date: 07/05/13

DOCKET NO.  10-08 700	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUE

Entitlement to an initial compensable rating for bilateral hearing loss.


ATTORNEY FOR THE BOARD

A. M. Clark, Counsel


INTRODUCTION

The Veteran served on active duty from August 1957 to August 1960.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana.

The Veteran requested a hearing before the Board when he submitted his substantive appeal in February 2010.  In a February 2012 statement, the Veteran indicated that he no longer desired a hearing before the Board.

In September 2012, the Board remanded this case for further development.  Pursuant to that Remand, the RO was asked to obtain outstanding treatment records and to provide him with an additional VA examination.  The Board is satisfied there was substantial compliance with the Remand.  Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). 

The issue of entitlement to service connection for a vestibular disorder has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over that issue, and it is referred to the AOJ for appropriate action.  


FINDINGS OF FACT

1.  Prior to August 5, 2008, the Veteran's service-connected bilateral hearing loss disability 2qw manifested by no more than Level III hearing impairment in the right ear and Level I hearing impairment in the left ear.  

2.  As of August 5, 2008, the Veteran's service-connected bilateral hearing loss disability is shown to be manifested by no more than Level IV hearing impairment in the right ear and Level V hearing impairment in the left ear.  

CONCLUSIONS OF LAW

1.  Prior to August 5, 2008, the criteria for the assignment of a compensable rating for service-connected bilateral hearing loss had not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.85, 4.86, Diagnostic Code (DC) 6100 (2012).
 
2.  Beginning on August 5, 2008, the criteria for the assignment of a 10 percent rating, but not higher, for service-connected bilateral hearing loss have been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.85, 4.86, DC 6100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has a duty to notify and a duty to assist claimants in substantiating claims for VA benefits.  38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2012).  Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the AOJ of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The notice requirements apply to all five elements of a service-connection claim, to include Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability.  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

The Veteran's increased rating claim arises from his disagreement with the initial rating assigned following the grant of service connection.  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).  Therefore, in the current appeal, no further notice is needed.

VA also has a duty to assist a Veteran in the development of the claim.  That duty includes assisting him in the procurement of service medical records and other pertinent records, and providing an examination when necessary.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). 

After a careful review of the file, the Board finds that all necessary development has been accomplished, and that appellate review may proceed without prejudice to the Veteran.  Bernard v. Brown, 4 Vet. App. 384 (1993).  The AOJ obtained the Veteran's service medical records and VA treatment records.  The Veteran also submitted personal statements in support of his appeal and private treatment records.  The Board has reviewed the Veteran's Virtual VA electronic claims file.

The Board notes that the Veteran has submitted additional evidence following the issuance of the February 2013 supplemental statement of the case.  However, in a March 2012 statement, the Veteran indicated that he waived AOJ consideration of any future evidence he wished to submit at a later time.  Accordingly, a remand to accord the AOJ an opportunity to readjudicate the Veteran's claim with consideration of this additional evidence is not necessary.  38 C.F.R. § 20.1304 (2012).  

The Veteran was provided VA examinations in April 2008 and November 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.  Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's bilateral hearing loss since the November 2012 VA examination.  The Board finds the VA examinations to be thorough and adequate upon which to base a decision with regard to the Veteran's claim.  The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to rate his disability under the applicable rating criteria.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination has been met.  38 C.F.R. § 3.159(c)(4) (2012).  

The Board concludes that all the available records and medical evidence have been obtained in order to make adequate determinations as to the issue on appeal.  Therefore, no further notice or assistance is required to fulfill VA's duty to assist in development.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities.  Separate diagnostic codes identify the various disabilities, which are based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012).  When rating a service-connected disability, the entire history must be borne in mind.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

Where there is a question as to which of two ratings 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).

The Veteran's bilateral hearing loss is rated according to a mechanical application of the rating schedule, using numeric designations assigned based on audiometric test results.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).  Ratings for bilateral defective hearing range from 0 percent to 100 percent.  The basic method of rating hearing loss involves audiological test results of impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz.  To rate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness.  38 C.F.R. § 4.85 (2012).

The current rating criteria include an alternate method of rating exceptional patterns of hearing.  38 C.F.R. § 4.86 (2012).  That alternative method provides that, when the pure tone threshold at each of the four specified frequencies of 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) (2012).

Additionally, 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, and then elevate that numeral to the next higher Roman numeral, evaluating each ear separately.  38 C.F.R. § 4.86(b) (2012).

Table VIa, Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average, is used to determine a Roman numeral designation, I through XI, for hearing impairment based only on the puretone threshold average.  38 C.F.R. § 4.85(c) (2012).  Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, or other reasons, or when indicated under the provisions of 38 C.F.R. § 4.86 (2012).

The Veteran contends that his hearing loss is more severe than rated.  He reports that his hearing disability causes functional impairment to the extent that he has difficulty comprehending conversational speech.

In October 2005, the Veteran underwent private audiological testing.  The examination revealed the following puretone thresholds, in decibels:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
40
40
55
60
LEFT
25
50
55
55
60

His puretone average for the right ear was 48.75, and for his left ear was 55.  Speech recognition was 80 percent for his right ear and 100 percent for his left ear.  

Applying the findings of the October 2005 private audiometric testing to the rating criteria for hearing impairment, the Board finds that the criteria for a compensable rating for bilateral hearing loss have not been met.  Considering that the Veteran's right ear manifested an average puretone threshold of 48.75 dB, with a 80 percent speech discrimination, his right ear hearing loss had Level III impairment.  38 C.F.R. § 4.85, Table VI (2012).  Considering that the Veteran's left ear manifested an average pure tone threshold of 55 dB, and 100 percent speech discrimination, the Veteran's left ear hearing loss had Level I impairment.  38 C.F.R. § 4.85, Table VI (2012).  Applying those results to Table VII, a compensable rating was not warranted. 

The Veteran underwent a VA audiological examination in April 2008.  The examination revealed the following puretone thresholds, in decibels:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
40
50
65
60
LEFT
25
35
50
60
60

His puretone average for the right ear was recorded as 53.75 dB.  His puretone average for the left ear was recorded as 51.25 dB.  Speech recognition was 96 percent in both ears.  

Applying the findings of the April 2008 VA examination to the rating criteria for hearing impairment, the Board finds that the criteria for a compensable rating for bilateral hearing loss were not met.  Considering that the Veteran's right ear manifested an average puretone threshold of 53.75 dB, with a 96 percent speech discrimination, his right ear hearing loss had Level I impairment.  38 C.F.R. § 4.85, Table VI (2012).  As the Veteran's left ear manifested an average pure tone threshold of 51.25 dB, and 96 percent speech discrimination, the Veteran's left ear hearing loss had Level I impairment.  38 C.F.R. § 4.85, Table VI (2012).  Applying those results to Table VII, a compensable rating was not warranted. 

Throughout the period prior to August 5, 2008, the manifestations of the service-connected bilateral hearing loss disability did not equate with or more nearly approximate the criteria for a compensable rating.  

The Board finds that a preponderance of the evidence is against a finding that the service-connected bilateral hearing loss disability warranted a compensable rating prior to August 5, 2008.  As the preponderance of the evidence is against the claim for a compensable rating prior to August 5, 2008, the claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran underwent a private audiological examination on August 5, 2008.  The examination revealed the following puretone thresholds, in decibels:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
45
55
[55]
60
LEFT
35
60
60
[65]
70

The Board notes that readings were not actually taken at 3000 Hertz.  However, if interpreting the audiogram in the most advantageous way for the Veteran, based on the trendline the Board has assigned 55 dB (right ear) and 65 dB (left ear) ratings for 3000 Hertz.  Thus, the puretone average for his right ear was 53.75 and the puretone average for his left ear was 63.75.  The Board additionally notes that the private testing did not use the Maryland CNC test as required by the regulations.  38 C.F.R. § 4.85(a) (2012).  Therefore, the Veteran's speech discrimination scores are not valid for rating hearing loss disability for VA purposes and will not be considered.  Using Table VIA with only the puretone averages, the Board finds that the Veteran's right ear hearing loss demonstrated Level III impairment and his left ear hearing loss demonstrated level V impairment.  Applying those results to Table VII, a 10 percent rating was warranted. 

The Veteran underwent a subsequent private audiological examination on November 22, 2010.  The examination revealed the following puretone thresholds, in decibels:



HERTZ



500
1000
2000
3000
4000
RIGHT
30
50
60
[55]
55
LEFT
35
60
65
[65]
65

The Board notes that readings were not actually taken at 3000 Hertz.  However, if interpreting the audiogram in the most advantageous way for the Veteran, based on the trendline the Board has assigned 55 dB (right ear) and 65 dB (left ear) ratings for 3000 Hertz.  Thus, the puretone average for his right ear was 55 and the puretone average for his left ear was 63.75.  The Board additionally notes that the private testing did not use the Maryland CNC test as required by the regulations.  38 C.F.R. § 4.85(a) (2012).  Therefore, the Veteran's speech discrimination scores are not valid for rating hearing loss disability for VA purposes and will not be considered.  Using Table VIA, the Board finds that the Veteran's right ear hearing loss demonstrated Level III impairment and his left ear hearing loss demonstrated level V impairment.  Applying those results to Table VII, a 10 percent rating was warranted. 

The Veteran underwent a subsequent private audiological examination in July 2012.  The examination revealed the following puretone thresholds, in decibels:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
50
55
65
55
LEFT
35
55
55
60
60

The puretone average for his right ear was 56.25 and the puretone average for his left ear was 57.5.  The Board additionally notes that the private testing did not use the Maryland CNC test as required by the regulations.  38 C.F.R. § 4.85(a) (2012).  Therefore, the Veteran's speech discrimination scores are not valid for rating hearing loss disability for VA purposes and will not be considered.  Using Table VIA, the Board finds that the Veteran's right ear hearing loss demonstrated Level IV impairment and his left ear hearing loss demonstrated level IV impairment.  Applying those results to Table VII, a 10 percent rating was warranted. 

The Veteran underwent a VA audiological examination in November 2012.  The examination revealed the following puretone thresholds, in decibels:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
40
55
60
60
LEFT
30
50
60
60
65

His puretone average for the right ear was recorded as 54 dB.  His puretone average for the left ear was recorded as 59 dB.  Speech recognition was 94 percent in both his right and left ears.  However, the VA examiner specifically noted that the use of the Veteran's speech discrimination scores was not appropriate because of language difficulties, cognitive problems, inconsistent speech discrimination scores, or for another reason that mad combined use of puretone average and speech discrimination scores inappropriate.  Therefore, the Board will again use Table VIa.  38 C.F.R. § 4.85(c) (2012).  Using Table VIA, the Board finds that the Veteran's right ear hearing loss demonstrated Level III impairment and his left ear hearing loss demonstrated level IV impairment.  Applying those results to Table VII, a 10 percent rating was warranted. 

The Board finds that the service-connected bilateral hearing loss disability, as of August 5, 2008, met the criteria for a 10 percent disability rating.  However, based on the evidence of record, the criteria of rating in excess of 10 percent have not been met or more nearly approximated through the period on appeal.  

The Board is mindful that an audiologist must provide a description of the functional effects caused by a hearing loss disability.  Martinak v. Nicholson, 21 Vet. App. 447 (2007).  The April 2008 VA examiner specifically set forth the functional effects of the Veteran's hearing disability, including the situations of greatest difficulty for the Veteran to include noisy situations, television, women, and children.  The November 2012 VA examiner noted that the Veteran did not like to get into long conversations or to attend big parties or gatherings.  The examiner noted that the Veteran preferred one-on-one conversations and believed others thought he was ignoring them and that had been problematic.  The Board finds that is sufficient to comply with the applicable VA policies.  Martinak v. Nicholson, 21 Vet. App. 447 (2007) (VA audiologist's indication in report that Veteran's hearing loss affected his ability to sleep was sufficient to comply with requirements of VA's own internal guidance documents that VA audiologists describe the effects of a hearing disability on occupational functioning and daily activities).  Additionally, the Board has considered various lay statements from family members attesting to the impact of the Veteran's hearing loss.  The Board finds that the functional effects of the Veteran's bilateral hearing loss disability are adequately addressed by the record.  

The Board acknowledges that the Veteran has submitted an internet article regarding how hearing loss should be evaluated.  Medical treatise evidence can, in some circumstances, constitute competent medical evidence.  Wallin v. West, 11 Vet. App. 509 (1998); 38 C.F.R. § 3.159(a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses).  Similarly, medical treatise evidence could discuss generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least a plausible causality based upon objective facts.  Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11 Vet. App. 314 (1998), Libertine v. Brown, 9 Vet. App. 521 (1996).  However, the articles submitted by the Veteran are of a general nature and do not contain any information or analysis specific to his case.  Thus, that evidence is not persuasive and does not support the assignment of any higher rating.  

The Board has additionally considered a March 2013 expert opinion that discusses a different method for characterizing the Veteran's hearing loss as a "hearing handicap" and rating the Veteran's hearing loss.  However, the Board notes that the ratings for hearing loss are based on a mechanical application of the tables provided by law and that the Board is bound by the statutes and regulations governing the rating of service-connected disabilities for VA purposes.  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.  Lendenmann v. Principi, 3 Vet. App. 345 (1992). 

The Board is sympathetic to the Veteran's position that higher ratings are warranted for his service-connected bilateral hearing loss.  However, the audiometric examination results, as compared to the rating criteria, do not warrant a compensable rating prior to August 5, 2008, or a rating in excess of 10 percent since August 5, 2008, for service-connected bilateral hearing loss.  Accordingly, the Board finds that the preponderance of the evidence is against the claim for a compensable schedular rating for bilateral hearing loss prior to August 5, 2008, or a rating in excess of 10 percent since August 5, 2008.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Whether the Veteran is entitled to a referral for an extraschedular rating is a component of a claim for an increased rating claim.  Bagwell v. Brown, 9 Vet. App. 337 (1996).  Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

To determine whether referral for extraschedular consideration is warranted, a determination as to whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology must be made by the RO or Board.  If the rating criteria are inadequate, the RO or Board must proceed to determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization.  If the related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration.  38 C.F.R. § 3.321(b) (2012); Thun v. Peake, 22 Vet. App. 111 (2008).  

In this case, there has been no showing that the Veteran's disability picture could not be contemplated adequately by the applicable schedular rating criteria.  Although the applicable criteria provide for higher ratings, the Board fully explained why a compensable rating prior to August 5, 2008, or a rating in excess of 10 percent since August 5, 2008, is not warranted.  Moreover, the evidence does not show that the Veteran's bilateral hearing loss has caused marked interference with employment or frequent periods of hospitalization.  His disability picture is contemplated by the rating schedule, and the assigned schedular rating are adequate.  Consequently, referral for extraschedular consideration is not warranted.  38 C.F.R. § 3.321 (2012).

Finally, although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible for his hearing loss, he has not submitted evidence of unemployability, or claimed to be unemployable due to his bilateral hearing loss.  Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised.  Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).


ORDER

A compensable rating for bilateral hearing loss prior to August 5, 2008 is denied.

An increased rating of 10 percent, but not higher, for bilateral hearing loss for the as of August 5, 2008, is granted.



____________________________________________
HARVEY P. ROBERTS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs