Citation Nr: 1321356	
Decision Date: 07/03/13    Archive Date: 07/12/13

DOCKET NO.  09-32 840	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUE

Entitlement to initial staged ratings for bilateral hearing loss currently evaluated as noncompensable prior to August 2, 2012 and 10 percent thereafter.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. McPhaull, Counsel


INTRODUCTION

The Veteran had active service from February 1952 to January 1954. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by the Boston, Massachusetts Department of Veterans Affairs (VA) Regional Office (RO) which, in part, granted service connection for bilateral hearing, assigning a noncompensable disability rating, effective from August 21, 2007 (the date of the claim for service connection); and denied service connection for posttraumatic stress disorder (PTSD).  The Veteran disagreed with this decision and perfected an appeal.  

In September 2009, the Veteran requested a Travel Board hearing.  He failed to report to such hearing scheduled in February 2013.

In a November 2012 rating decision, the RO granted service connection for PTSD.  Consequently, such issue is no longer before the Board.  The rating decision also increased the rating for bilateral hearing loss to 10 percent, effective from August 2, 2012 (the date of the most recent VA audiology assessment).  Inasmuch as the Veteran has not indicated otherwise, it is presumed he is appealing both stages of the rating.  The issue is thus characterized accordingly.  

The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  A review of the electronic file reveals additional VA treatment records dated from May 2008 to September 2012.

Finally, the Board notes that the United States Court of Appeals for Veterans Claims (Court) held in Rice v. Shinseki, 22 Vet. App. 447 (2009) that every claim for a higher rating includes a claim for a total rating based on individual unemployability (TDIU) where a Veteran claims that his service-connected disability prevents him from working.  The Veteran has not alleged that he is currently unemployed or completely unemployable as result of the aforementioned service-connected disability.  As such, the Board finds that Rice is not applicable to the current appeal.  There must be cogent evidence of unemployability in the record.  See Rice, 22 Vet. App. 447, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009).  Thus, any further discussion of an issue of entitlement to TDIU is not necessary.  See Rice, supra.

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).


FINDINGS OF FACT

1.  Prior to August 2, 2012, the objective evidence reveals the Veteran had no more than Level II hearing loss in the right ear and Level III hearing loss in the left ear, evaluated as non-compensable.

2.  From August 2, 2012, the objective evidence reveals the Veteran's service-connected bilateral hearing loss was manifested by Level IV in the right ear and Level IV in the left ear, evaluated as 10 percent disabling.


CONCLUSION OF LAW

The criteria for an initial compensable disability rating for bilateral hearing loss prior to August 2, 2012; and a rating in excess of 10 percent from that date have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.385, 4.1-4.7, 4.21, 4.85, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

In cases where service connection has been granted and an initial disability rating and effective date have 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, 19 Vet. App. at 490; Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  

The Veteran's service treatment records and pertinent postservice treatment records are associated with the claims file.  He has not identified any pertinent treatment records that are outstanding.  He was examined by VA in December 2007 and August 2012.  There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected bilateral hearing loss disability since he was last examined.  See 38 C.F.R. § 3.327(a).  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.  The VA examination reports are thorough and supported by pertinent VA outpatient treatment records.  The examinations in this case are adequate upon which to base a decision.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). 

Relevant to hearing loss, in Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (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.  The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  The VA audiological evaluations do not specifically include the examiner's comment regarding the effect of the Veteran's bilateral hearing loss on his work and daily functioning.  However, based on a longitudinal review of the record the Board finds that he is not prejudiced by such omission.  In statements during audiological assessments, the Veteran describes how his bilateral hearing loss affects his daily activities (unable to hear the television or understanding soft-spoken people).  As a layperson, he is competent to provide this information.  The Board finds no reason to question it, accepts it at face value, and finds that the information adequately substitutes for what an examiner would have to offer in comment regarding the impact of the hearing loss on daily and occupational functioning.  Notably, the Veteran has not alleged any prejudice from an examination deficiency.  VA's duty to assist is met.  

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007).  Importantly, the Board notes that the Veteran is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006).  The Veteran has submitted argument and evidence in support of the appeal.  Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication is not affected. 

Analysis

Initially, the Board notes that all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal, has been reviewed.  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 assigned by applying a schedule of ratings that represent, as far as can be determined, the average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012).  Separate diagnostic codes identify the various disabilities and the criteria that must be met for specific ratings.  The regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole recorded history.  38 C.F.R. § 4.2 (2012); see Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  In every instance where the schedule does not provide a 0 percent evaluation for a diagnostic code, a 0 percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  See 38 C.F.R. § 4.31.  

When rating the service-connected disability, the entire medical history must be borne in mind.  Schafrath v. Derwinski, 1 Vet. App. (1991).  The current level of disability, however, is of primary concern in a claim for an increased rating; the more recent evidence is generally the most relevant in such a claim, as it provides the most accurate picture of the current severity of the disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  That being said, given unintended delays during the appellate process, VA's determination of the "current level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period that the increased rating claim has been pending.  In those instances, it is appropriate to apply staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  "Staged ratings" or separate ratings for separate periods of time may be assigned based on the facts found following the initial grant of service connection.  Fenderson v. West, 12 Vet. App. 119 (1999). 

The Veteran submitted a claim for service connection for bilateral hearing loss in August 2007.  He was afforded a VA audiological examination in December 2007 which showed a diagnosis of bilateral hearing loss.  By an April 2008 rating decision, the RO granted service connection for bilateral hearing loss, assigning a noncompensable disability rating effective August 21, 2007, the date of his claim.  The Veteran disagreed with this initial decision and subsequently perfected an appeal.  Based on an August 2, 2012 VA audiological assessment, the RO increased the rating for the bilateral hearing loss to 10 percent, effective from August 2, 2012. 

Impaired hearing will be considered a disability only after threshold requirements are met.  See 38 C.F.R. § 3.385.  Once disability is established, levels of hearing loss are determined by considering the average pure tone threshold and speech discrimination percentage scores.  38 C.F.R. § 4.85(b).  See Lendenmann v. Principi, 3 Vet. App. 345 (1992) (assignment of 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).

The provisions of 38 C.F.R. § 4.86 address exceptional patterns of hearing loss.  The exceptional patterns addressed in this section are present when the puretone threshold at each of the 4 specified frequencies (1000, 2000, 3000 and 4000 Hz) is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz.  

At the time of the December 2007 VA audiological examination the Veteran reported bilateral hearing loss.  He was not receiving any treatment for the condition.  The Veteran reported difficulty with hearing the television.  Audiological testing revealed the following:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
25
40
55
60
LEFT
25
35
55
70
70

The puretone threshold frequency average of 45 dB in the right ear and 57.5 dB in the left ear.  Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 86 in the left ear.  

During the August 2012 VA audiological assessment, the Veteran reported that he noticed increased difficulty hearing over the years.  His chief complaints were difficulty understanding the television and difficulty understanding soft spoken people.  Audiological testing revealed the following:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
30
55
65
60
LEFT
35
40
60
60
70

The puretone threshold frequency average of 52.5 dB in the right ear and 57.5 dB in the left ear.  Speech audiometry revealed speech recognition ability of 76 and 72 percent in the right ear and 76 and 56 percent in the left ear.  

As noted above, the RO has assigned staged ratings, and each "stage" will be addressed in turn.  

Rating Prior to August 2, 2012

The only audiometry during this time period adequate for rating purposes was the audiometry on VA evaluation in December 2007.  

The evidence does not show an exceptional level of impaired hearing; 38 C.F.R. § 4.86 is not applicable because the puretone threshold at each of the 4 specified frequencies (1000, 2000, 3000 and 4000 Hz) is not 55 decibels or more, nor is the puretone threshold 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz.  

Applying the results from the December 2007 VA audiological examination to Tables VI yields a Roman numeral value of II for the right ear and a Roman numeral value of III for the left ear.  See 38 C.F.R. §§ 4.85, 4.86.  Applying these values to Table VII, the Board finds that the Veteran's hearing loss warrants a noncompensable evaluation.  

The rating of hearing loss disability involves a mechanical application of the rating schedule to numeric designations assigned to official audiometry results.  Here, such process establishes that a compensable schedular rating is not warranted prior to August 2, 2012.

From August 2, 2012

The only audiometry sufficient for rating purposes during this time period is the audiometry on VA audiology assessment in August 2012.

Again, the evidence does not show an exceptional level of impaired hearing; 38 C.F.R. § 4.86 is not applicable because the puretone threshold at each of the 4 specified frequencies (1000, 2000, 3000 and 4000 Hz) is not 55 decibels or more, nor is the puretone threshold 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz. 

Applying the results from the August 2012 VA audiological assessment to Tables VI also yields a Roman numeral value of IV for the right ear and a Roman numeral value of IV for the left ear.  See 38 C.F.R. §§ 4.85, 4.86.  Applying these values to Table VII, the Board finds that the Veteran's hearing loss warrants a 10 percent evaluation.  The tables referred to above were provided to the Veteran in the Statement of the Case dated in June 2009.  

As stated above, the rating of hearing loss disability involves a mechanical application of the rating schedule to numeric designations assigned to official audiometry results.  Here, such process establishes that a rating in excess of 10 percent clearly is not warranted from August 2, 2012.

Finally, the Board is aware that the August 2012 VA audiological assessment report documents two separate hearing discrimination percentages for each ear.  According to the Handbook of Standard Procedures and Best Practices for Audiology Compensation and Pension Exams, "maximum speech recognition will be reported with the 50 word VA approved recording of the Maryland CNC test".  In rating exams, the audiologist will always attempt to obtain the best discrimination score possible (generally referred to as "PbMax').  Consequently, the 76 percent discrimination scores are what have been used to determine the Veteran's rating as these are the best discrimination scores.

Other considerations

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  See 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).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. 

Applying the findings of the December 2007 and August 2012 VA audiological examinations to the rating criteria for hearing impairment, the Board finds that the criteria for initial increased ratings for bilateral hearing loss have not been met.  As such, the probative evidence fails to demonstrate a more severe hearing loss disability than is currently addressed by the Veteran's staged percent disability ratings.  Therefore, the claim for entitlement to initial disability ratings in excess of 0 percent prior to August 2, 2012; and 10 percent from that date must be denied.

The Board acknowledges the Veteran's contentions that the current ratings do not adequately depict his hearing loss disability.  Regarding the Veteran's statements, the Board acknowledges that he is competent to give evidence about his experiences; i.e., he is competent to report that he is having greater trouble hearing.  See Charles v. Principi, 16 Vet. App. 370, 274 (2002) (finding Veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses).  However, the Veteran is not competent to report that his hearing is as severe to a level in excess of the staged 0 and 10 percent ratings under the Diagnostic Code 6100.  Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required.  See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  There is no indication in the record that the Veteran is a medical professional.  Therefore, as a layperson, he is not competent to provide evidence that requires medical knowledge because he lacks the requisite professional medical training, certification, and expertise to present opinions regarding diagnosis and etiology.  See Espiritu v. Derwinski, 2 Vet. App. 492 (1992).  The Board affords greater probative weight to the medical evidence. 

While the Board is sympathetic to the Veteran's assertions that that his hearing loss resulted in difficulty hearing people and the television, the fact remains, however, that the VA rating criteria are definitive and provide for a precise result based on audiometric test results.  The Veteran's subjective report of difficulty hearing, and any resulting social effects, cannot be the basis for an evaluative rating.  The Board is bound to apply the VA Rating Schedule, under which the rating criteria are defined by audiometric test findings involving hearing acuity in a controlled laboratory environment.

Extraschedular Rating

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 schedular evaluations are found to be inadequate.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  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 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); Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court set forth a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether the Veteran's disability picture is contemplated by the rating schedule.  If so, the rating schedule is adequate and an extraschedular referral is not necessary.  If, however, the Veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  These include marked interference with employment and frequent periods of hospitalization.  Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a Veteran's disability picture requires the assignment of an extraschedular rating.

With regard to the Veteran's service-connected bilateral hearing loss disability, the evidence of record does not reflect that the Veteran's disability picture is so exceptional as to not be contemplated by the rating schedule.  There is no unusual clinical picture presented, nor is there any other factor, which takes the disability outside the usual rating criteria.  The rating criteria for the Veteran's currently assigned staged percent disability ratings under Diagnostic Code 6100 contemplate his level of symptomatology.  Specifically, the criteria account for the Veteran's current puretone thresholds and speech recognition ability.  The Board acknowledges the Veteran's complaints of difficulty understanding speech and the television.  The Board notes that in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  Martinak, 21 Vet. App. at 455.  According to the Veteran's reports, it was noted, that his hearing loss resulted in difficulty hearing people and the television.  The Veteran did not report being currently employed nor did he alleged being unable to work due to his bilateral hearing loss.

Further, the Veteran's hearing difficulties are adequately contemplated by the Rating Schedule.  Notably, 38 C.F.R. §§ 4.85 and 4.86 adequately contemplate any functional loss due to hearing impairment.  As the Veteran's disability picture is contemplated by the Rating Schedule, the threshold issue under Thun has not been met and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary.

In short, the evidence does not support the proposition that the Veteran's service-connected bilateral hearing loss disability presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards to warrant the assignment of an extraschedular rating under 38 C.F.R.§ 3.321(b)(1).  Thus, referral of this issue to the appropriate VA officials for consideration of an extraschedular evaluation is not warranted.

When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).  The preponderance of the evidence in this case is against the Veteran's claim for higher initial ratings for bilateral hearing loss currently evaluated as noncompensable prior to August 2, 2012 and 10 percent thereafter.


ORDER


Initial ratings for bilateral hearing loss currently evaluated as noncompensable prior to August 2, 2012 and 10 percent thereafter are denied.


____________________________________________
MARJORIE A. AUER 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs