Citation Nr: 1321740 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 13-05 527 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from July 1943 to May 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In May 2013, the Veteran testified at a hearing before the undersigned Acting Veterans Law Judge (AVLJ). A transcript of the hearing has been associated with the claims file. 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). FINDING OF FACT Audiometric testing done for VA compensation purposes reveals no worse than Level I hearing acuity in the Veteran's right ear and Level VII hearing acuity in his left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.85 Diagnostic Code (DC) 6100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 & 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board notes that the Veteran's claim for a higher rating for bilateral hearing loss arises from his disagreement with the initial evaluation 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). Regardless, a March 2008 letter informed the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, VA obtained the Veteran's service treatment records (STRs), post-service medical records and also secured examinations in furtherance of his claim. Pertinent VA examinations were obtained in August 2008 and December 2012. 38 C.F.R. § 3.159(c)(4). The VA examinations obtained in this case are sufficient, as the examiners conducted complete examinations, recorded all findings considered relevant under the applicable law and regulations, and offered well supported opinions based on consideration of the full history of the disorder. The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issue adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). The Board acknowledges the Veteran's testimony at this hearing that the December 2012 examination was not adequate since his private doctor did not understand the results. See May 2013 Hearing Transcript (T.) at 6. However, as was explained to the Veteran, VA examinations require that speech discrimination scores utilize the Maryland CNC Word Test. Id. at 7. As discussed in detail below, the Veteran's private evaluations use a different speech discrimination score test, which may explain why the Veteran's private evaluations show a different degree of hearing loss. The Veteran requested another examination performed by a different audiologist. The Board also acknowledges the Veteran's testimony that a new examination was necessary as his hearing had worsened since the December 2012 examination. Id. at 6. Primarily, the Veteran asserts that the severity of his hearing loss warrants a compensable rating. While the Veteran's representative requested another examination at a different VA facility, the Veteran indicated that his preference would be to return to the same VA facility as he has difficulty getting around. As discussed in detail below, both examinations, which were four years apart, reflect that a noncompensable rating is warranted. The Board finds that a new examination is not necessary. Although a new VA examination is not warranted based merely upon the passage of time, see Palczewski v. Nicholson, 21 Vet. App. 174 (2007), the Court has held that where a veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). However, the Board finds here that the record does adequately reveal the current state of the Veteran's disability as the most recent examination is only 7 months old. Further, there is no evidence that the Veteran's hearing disability had materially changed since December 2012. Rather, the Veteran testified, in essence, that his hearing acuity was compensable at the time of the December 2012 examination and that the examination did not adequately reflect his level of hearing loss. As the Veteran's testimony did not demonstrate a worsening as contemplated by the diagnostic criteria; as the most recent examination, deemed adequate by VA, is only 7 months old; and as the evidence reflects that the Veteran's hearing loss has remained relatively stable during the course of this appeal, his argument for further examination must fail. VA has no duty to inform or assist that was unmet. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder. II. Analysis The Veteran contends that he is entitled to an initial compensable rating for his bilateral hearing loss. See, e.g., July 2012 notice of disagreement. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should 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. The Court has indicated that a distinction must be made between a veteran's dissatisfaction with original ratings and dissatisfaction with determinations on later filed claims for increased ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Consequently, the Board will evaluate the Veteran's bilateral hearing loss as a claim for a higher evaluation of the original award. Also, when an original rating is appealed, consideration must be given as to whether an increase is warranted at any time since the award of service connection, a practice known as "staged" ratings. Id. Disability evaluations 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). Examinations are conducted using the controlled speech discrimination tests together with the results of the pure tone audiometry test. See 38 C.F.R. § 4.85. The results are then analyzed using tables contained in 38 C.F.R. § 4.85, DC 6100. "Pure tone threshold average,'' as used in Tables VI and VIa, is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz , divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. The appropriate rating is then determined by finding the intersection point for the two Roman numeral designations using Table VII. For exceptional patterns of hearing impairment, 38 C.F.R. § 4.86 provides as follows: (a) 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. (b) 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. The average pure tone hearing loss in an August 2008 VA examination was 38 decibels in the right ear and 70 decibels in the left ear. Speech recognition scores using the Maryland CNC word lists were 98 percent in the right ear and 86 percent in the left ear. An exceptional pattern of hearing loss was not shown. The Veteran reported that he had the most difficulties hearing conversation. Pursuant to 38 C.F.R. 4.85, Table VI with regards to the Veteran's right ear, his pure tone threshold average and speech discrimination score received a numeric designation of Level I. Turning to the Veteran's left ear, the foregoing pure tone threshold average and speech discrimination score received a numeric designation of Level III. Applying the numeric designations to 38 C.F.R. 4.85, Table VII, the Veteran was entitled to a noncompensable rating under DC 6100. Therefore, a compensable rating is not warranted based on these results. A March 2011 VA treatment record shows that speech recognition scores used the W-22 word list instead of the Maryland CNC word lists. An exceptional pattern of hearing loss in the left ear was shown as the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) was over 55 decibels. The Board observes that 38 C.F.R. § 4.86 for exceptional patterns of hearing loss provides for the rating specialist to determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa. Table VIa is based on pure tone thresholds alone without speech discrimination scores. However, while the left ear can be evaluated without speech discrimination scores, the right ear cannot as an exceptional pattern of hearing loss was not shown. Therefore, as the Veteran's right ear cannot receive a numeric designation pursuant to 38 C.F.R. 4.85, Table VI, the results of this examination may not be used to rate the Veteran's bilateral hearing loss disability. An April 2012 private treatment record shows that according to the New York State Worker's Compensation percentage disability formula based upon occupational noise trauma, the Veteran would have a 38 percent disability rating. However, this record indicates that pure tone threshold averages were the sum of the puretone thresholds at 500, 1000, 2000 and 3000 Hertz divided by four; as noted above, VA does not use the pure tone thresholds at 500 Hertz, but instead uses the thresholds at 4000 Hertz. The record indicates that the speech recognition scores used the W-22 word list instead of the Maryland CNC word lists. An exceptional pattern of hearing loss in the left ear was shown as the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) was over 55 decibels. While the left ear can be evaluated without speech discrimination scores, the right ear cannot as an exceptional pattern of hearing loss was not shown. Therefore, as the Veteran's right ear cannot receive a numeric designation pursuant to 38 C.F.R. 4.85, Table VI, the results of this examination may not be used to rate the Veteran's bilateral hearing loss disability. The average pure tone hearing loss in a December 2012 VA examination was 46 decibels in the right ear and 75 decibels in the left ear. Speech recognition scores using the Maryland CNC word lists were 100 percent in the right ear and 64 percent in the left ear. An exceptional pattern of hearing loss in the left ear was shown as the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) was over 55 decibels. The examiner opined that the Veteran's bilateral hearing loss impacted ordinary conditions of daily life, including the ability to work. The Veteran worked as a stock broker and had been wearing hearing aids for three to four years. He stated that he had the most difficulty hearing in the presence of background noise, in restaurants and at the movies. Pursuant to 38 C.F.R. 4.85, Table VI with regards to the Veteran's right ear, his pure tone threshold average and speech discrimination score received a numeric designation of Level I. Turning to the Veteran's left ear, the foregoing pure tone threshold average and speech discrimination score received a numeric designation of Level VII. [Using just the pure tone threshold average for an exceptional pattern of left ear hearing loss results in a numeric designation of Level VI under 38 C.F.R. 4.85, Table VIa.] Applying the numeric designations to 38 C.F.R. 4.85, Table VII, the Veteran was entitled to a noncompensable rating under DC 6100. Therefore, a compensable rating is not warranted based on these results. Here, the Veteran has been awarded a noncompensable rating throughout the pendency of this appeal. For the reasons set forth above, the evidence does not show that he is entitled to an initial compensable rating for bilateral hearing loss at any time since the award of service connection based on the standard rating criteria. 38 C.F.R. § 4.85, DC 6100. Therefore, his initial rating claim is denied. The above determination is based upon consideration of applicable rating provisions. 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. 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 loss disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. In this case, the Veteran reported functional impairment in that he had difficulties hearing conversation at the August 2008 examination and reported difficulty hearing in the presence of background noise, in restaurants and at the movies at the December 2012 examination. As the examinations described the functional effects of the Veteran's bilateral hearing loss disability, and as the Veteran has not demonstrated any prejudice caused by a deficiency with respect to the description of the functional effects of his hearing loss in either examination, the Board reiterates that the evidence does not support a finding of a compensable rating at any time since the award of service connection. Accordingly, and based on this evidentiary posture, the Board concludes that the totality of the evidence of record has not shown that the Veteran's bilateral hearing loss warrants a compensable schedular rating at any time since the award of service connection. The Board finds, therefore, that the evidence of record does not support the criteria required for an initial compensable schedular rating at any time since the award of service connection. The Board also finds that evidence does not show an exceptional or unusual disability picture as would render impractical the application of the regular schedular rating standards. See 38 C.F.R. § 3.321 (2012). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe a Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe a Veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. If the schedular rating criteria do not reasonably describe a Veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The schedular evaluation in this case is adequate. In this regard, the Board notes that the Veteran reports that he works as a stockbroker; however, he reports that his hearing loss causes him the most difficulty in restaurants and at the movies, not in his workplace. It bears emphasis that the schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (2012). Here, comparing the manifestations of the Veteran's bilateral hearing loss with the applicable schedular criteria, the Board finds that the nature of the manifestations and severity of associated impairment (both as alleged by the Veteran and as described by examiners), are wholly encompassed by the schedular criteria. In this case, the very problems reported by the Veteran are specifically contemplated by the criteria discussed above. 38 C.F.R. § 4.10. Therefore, given the lack of evidence showing unusual disability not contemplated by the rating schedule, the Board concludes that a remand to the RO for referral of this issue to the VA Central Office for consideration of an extraschedular evaluation is not warranted. Although the Veteran has submitted evidence of a medical disability, and a made claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable, as a result of his service-connected bilateral hearing loss. The most recent 2012 examination indicates that he is employed as a stockbroker. The issue of entitlement to a total disability rating based on individual unemployability due to this service-connected disability has not, therefore, been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. ____________________________________________ M.C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs