Citation Nr: 1321782	
Decision Date: 07/08/13    Archive Date: 07/18/13

DOCKET NO.  12-23 561	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to an initial compensable evaluation for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Colorado Division of Veterans Affairs


ATTORNEY FOR THE BOARD

C. D. Simpson







INTRODUCTION

The Veteran had active duty service from August 1951 to October 1952.

This matter comes before the Board of Veteran's Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which granted service connection for bilateral hearing loss and tinnitus and assigned noncompensable and 10 percent evaluations, respectively, effective March 21, 2011 (the date on which the Veteran filed his claims for service connection).  The Veteran timely appealed his assigned evaluations for bilateral hearing loss and tinnitus.

The Veteran also filed a timely notice of disagreement (NOD) to an October 2012 RO decision awarding service connection for depression secondary to service connected hearing loss and tinnitus.  In November 2012, the RO increased the initial rating from 10 to 30 percent for depression.  As the Veteran limited his request to the next higher rating on his NOD, the RO considered the increased rating a total grant and closed the appeal for this issue.  See November 2012 NOD.  The issue of depression is not currently before the Board.  

In February 2013, the Board denied an increased rating for tinnitus and remanded the increased rating claim for hearing loss for additional development.  

Review of the Veteran's electronic folder (efolder) within the Virtual VA paperless claims processing system does not show any pertinent records that are not already associated with the physical claims folder. 

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

The Veteran's bilateral hearing has been no worse than Level III hearing in each ear and he has not demonstrated an exceptional pattern of hearing impairment.   

 
CONCLUSION OF LAW

The criteria for a compensable rating for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.385, 4.85, 4.86 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was enacted in November 2000.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012).  To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). 

The Board finds that all notification action needed to make a decision as to the claim on appeal has been accomplished.  The issue on appeal arises from disagreement with the initial rating following the grant of service connection.  The courts have held that once service connection is granted, the claim is substantiated.  Additional VCAA notice is not required.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  The record indicates that the Veteran was provided with VCAA notice in March 2011.  Specifically, the RO notified the Veteran of information and evidence necessary to substantiate his service connection claims.  He was notified of the information and evidence that VA would seek to provide and the information and evidence that he was expected to provide.  

There is no indication that any additional action is needed to comply with the duty to assist in connection with the issue on appeal.  The Veteran's service treatment records, Denver VA Medical Center (VAMC) treatment records, and private audiology records are available.  The VAMC records are inclusive of the Colorado Springs community based outpatient records (CBOC).  The Veteran was provided appropriate VA audiology examinations for his claim with the most recent taking place in April 2013.  The reports contain sufficient evidence by which to evaluate the Veteran's bilateral hearing loss in the context of the rating criteria.  Thus, VA has properly assisted the Veteran in obtaining any relevant evidence.

As explained below, the private audiograms were not conducted by a state licensed audiologist and do not contain Maryland CNC speech discrimination testing, both of which are required under 38 C.F.R. § 4.85.  Under some circumstances, VA has a duty to return for clarification unclear or insufficient private examination reports.  Savage v. Shinseki, 24 Vet. App. 259 (2011).  Given that the private examination reports do not meet the 38 C.F.R. § 4.85 criteria for an adequate audiology examination, they are not probative.  A remand for clarification of the private audiograms is unlikely to raise a reasonable possibility of substantiating the claim.  

The Board also finds that the record reflects substantial compliance with its February 2013 remand.  In April 2013, the Veteran reported that he did not have any additional treatment since October 2012.  Notably, he reported prior VA treatment at "Fort Carson in Colorado Springs" in January 2013 and the Fort Carson Medical Center was specifically mentioned in the remand instructions.  However, VA does not have a separately identifiable Fort Carson VAMC or CBOC and it appears the reported treatment would be part of the Colorado Springs CBOC.  He was provided an additional audiology examination.  The agency of original jurisdiction (AOJ) then readjudicated the claim by way of a May 2013 Supplemental Statement of the Case.  The Boards finds that substantial compliance has been established.  

Accordingly, the Board is satisfied that the duty-to-assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) were satisfied and that there was at least substantial compliance with all terms of its February 2013 remand for the issue decided herein.  See D'Aries v. Peake, 22 Vet. App. 97, 104-06 (2008) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (substantial compliance as applied to remand instructions)); Stegall v. West, 11 Vet. App. 268 (1998).

II.  Increased rating 

Laws and regulations

Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012).  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).  After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012).  A Veteran's entire history is reviewed when making disability evaluations.  See generally 38 C.F.R. § 4.1 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Because the Veteran is challenging the initially assigned disability rating, it has been in continuous appellate status since the original assignment of service connection.  The evidence to be considered includes all evidence proffered in support of the original claim.  Fenderson v. West, 12 Vet. App. 119 (1999).  

The assigned evaluation for hearing loss is determined by mechanically applying the rating criteria to certified test results.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examinations.  Evaluations of hearing impairment range from noncompensable to 100 percent based on organic 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 puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz.  The rating criteria establish eleven auditory acuity levels designated from I to XI.  As set forth in the regulations, Tables VI, VIa, and VII are used to calculate the rating to be assigned.  See 38 C.F.R. § 4.85 (Diagnostic Code 6100) (2012). 

Additionally, the regulations allow for evaluating exceptional patterns of hearing impairment.  When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(a) (2012).  When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral.  Thereafter, that numeral will be elevated to the next higher numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(b).   

Analysis

The Veteran had a VA audiology consultation in March 2011.  The audiogram showed pure tone thresholds, in decibels, as follows:





HERTZ

1000
2000
3000
4000
RIGHT
35
45
60
80
LEFT
40
55
70
70

Decibel average was 55 in the right ear and 58.75 in the left ear.  Speech audiometry revealed speech recognition ability of 96 percent bilaterally.  The examiner diagnosed mild to severe sensorineural hearing loss in both ears.  The Veteran described his hearing loss as having a gradual onset.  He had particular difficulty hearing when background noise was present.  The examiner recommended hearing aids.  Under Table VI, a numeral of I is assigned for the right ear and a numeral of II is assigned for the left ear, resulting in a noncompensable rating.  38 C.F.R. §§ 4.85, 4.86,  Tables VI and VII.  

The Veteran was afforded a VA audiology examination in September 2011.  The audiogram showed pure tone thresholds, in decibels, as follows:





HERTZ

1000
2000
3000
4000
RIGHT
35
40
65
75
LEFT
40
50
70
70

Decibel average was 53.75 in the right ear and 57.5 in the left ear.  Speech audiometry revealed speech recognition ability of 94 percent in both ears.  The examiner maintained the mild to severe sensorineural hearing loss diagnosis for both ears.  He described the disability as having a significant occupational effect.  Under Table VI, a numeral of I is assigned for the right ear and a numeral of II is assigned for the left ear, resulting in a noncompensable rating.  38 C.F.R. §§ 4.85, 4.86, Tables VI and VII.  

In May 2012, the Veteran has a private audiogram.  Briefly, the Board notes that the Veteran submitted two private audiograms with the other taken in October 2012.  The private examiner is not qualified as a state licensed audiologist and did not provide Maryland CNC speech discrimination results.  Rather the private examiner has an expired state hearing aid associate license.   See https://www.colorado.gov /dora/licensing/Lookup/LicenseLookup.aspx (last visited June 25, 2013)).  For these reasons, the private audiograms are not adequate for ratings purposes and will not be given further consideration.  38 C.F.R. § 4.85(a).  

VA reexamined the Veteran in August 2012.  The audiogram showed pure tone thresholds, in decibels, as follows:





HERTZ

1000
2000
3000
4000
RIGHT
40
45
65
75
LEFT
40
-
70
70

Decibel average was 56.25 in the right ear and 60 in the left ear.  Briefly, the Board notes the examination report does not include a 2000 hertz finding for the left ear.  The average of 1000, 3000, and 4000 hertz is listed above.  Speech audiometry revealed speech recognition ability of 90 percent in both ears.  The examiner maintained the mild to severe sensorineural hearing loss diagnosis for both ears.  He described the disability as having significant occupational effects.  Under Table VI, a numeral of II is assigned for the right ear and a numeral of III is assigned for the left ear, resulting in a noncompensable rating.  38 C.F.R. §§ 4.85, 4.86, Tables VI and VII.  

In January 2013, the Veteran reported that he was planning to leave his job.  He cited his hearing difficulties and reported that his hearing aids were ineffective due to continued tinnitus.  

In February 2013, the Veteran's supervisor, G.B., submitted a statement.  He stated that the Veteran had been employed for over 15 years and his hearing loss had become progressively worse over the past few years.  The Veteran frequently needed conversations and questions repeated to him.  Due to his misunderstanding, problems had arisen with client safety.  He planned to resign due to his hearing difficulties.  

VA reexamined the Veteran in April 2013.  The audiogram showed pure tone thresholds, in decibels, as follows:





HERTZ

1000
2000
3000
4000
RIGHT
40
50
70
75
LEFT
40
55
70
70

Decibel average was 59 in both ears.  Speech audiometry revealed speech recognition ability of 86 percent in the right ear and 88 percent in the left ear.  The examiner maintained the sensorineural hearing loss diagnosis for both ears.  He listed the functional impairment as difficulty understanding speech in most situations.  However, he opined that the Veteran would be able to communicate effectively in all employment situations and hearing aids further enhance his ability to hear.  He did not believe tinnitus significantly impaired the Veteran's ability to communicate.  Under Table VI, a numeral of III is assigned for each ear, resulting in a noncompensable rating.  38 C.F.R. §§ 4.85, 4.86,  Tables VI and VII.  

Upon review, the Veteran has not met the criteria for a compensable initial rating for bilateral hearing loss.  38 C.F.R. §§ 4.85, 4.86 (Diagnostic Code 6100).  As noted above, the most recent VA examination confirmed level III impairment for each ear.  The Veteran does not meet the Table VIA criteria.  In other words, he has not met the criteria for a compensable initial rating at anytime.  Id.  

The Board recognizes that the Veteran believes compensable disability ratings are warranted.  However, as already noted, the rating assigned for hearing loss is determined by a mechanical application of the rating schedule, which is grounded on numeric designations assigned to audiometric examination results.  Lendenmann, 3 Vet. App. at 349.  The evidence does not show that the Veteran met the numerical designation for a compensable rating for hearing loss.  Id.; 38 C.F.R. §§ 4.85, 4.86 (Diagnostic Code 6100).  Accordingly, a compensable initial rating for hearing loss is denied.  

Extraschedular considerations

If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization").

After consideration of the evidence, the Board has determined that referral for an extraschedular rating is not warranted.  The Board has considered symptoms of the Veteran's service-connected hearing loss alone, and in conjunction with service connected tinnitus and depression.  Mittleider v. West, 11 Vet. App. 181 (1998).  The April 2013 VA examination report showed that the Veteran reported functional impairment of difficulty understanding speech and sleeping due to hearing loss and tinnitus, respectively.  Nonetheless, the clinical examiners, including most recently in April 2013, have not identified any unusual or otherwise exceptional symptoms.  The primary symptoms of decreased hearing acuity, speech discrimination, and tinnitus are clearly contemplated by the schedular rating criteria.  The Veteran is in receipt of a separate rating for psychological problems, including insomnia, due to hearing loss and tinnitus.  The record does not otherwise suggest the presence of any extraordinary symptoms or manifestations due to hearing loss or other service connected disabilities either considered jointly or singly.  Although the Veteran has provided lay reports of functional impairment significantly more severe than clinical findings would suggest, as explained below, the Board does consider his reports persuasive.  For these reasons, the Board considers the schedular evaluation to be adequate and referral for extraschedular consideration is not warranted.  Thun, supra.; 38 C.F.R. § 3.321.



Total disability rating based upon individual unemployability (TDIU)

The Court has held that a Total Rating for Compensation Based on Individual Unemployability (TDIU) is an element of all claims for an initial increased rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  The record shows that the Veteran recently left employment due to hearing problems.  He submitted a statement from his supervisor (G.B.) in support of his claim.  

Here, the clinical findings show that the Veteran's hearing loss is noncompensable under the schedular rating criteria.  The Veteran and G.B.'s statements are suggestive of a functional impairment greatly out of proportion to the schedular rating criteria as to preclude employment.  They are certainly competent to describe the Veteran's functional impairment from hearing loss.  Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); Layno v. Brown, 6 Vet. App. 465, 470 (1994).  The issue is whether their reports are credible.  In determining credibility, the Board considers such factors as possible bias, conflicting statements; internal inconsistency, facial plausibility and consistency with other evidence.  Buchanan v. Nicolson, 451 F.3d 1331, 1336-7 (Fed. Cir. 2006); Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F. 3d 1447, 1481 (Fed. Cir. 1997); (Holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 

The April 2013 VA examiner explicitly considered the occupational impairment and provided a negative opinion.  It was based upon review of the claims file and clinical examination.  His report comports better with the multiple audiograms confirming noncompensable hearing loss.  Additionally, he has specialized expertise in audiology.  For these reasons, the Board considers the April 2013 VA examiner report highly probative on the Veteran's functional impairment from hearing loss.  See id.  

The Veteran and G.B.'s statements conflict with clinical findings taken on multiple occasions showing noncompensable hearing loss and the persuasive April 2013 VA opinion.  (See VA audiograms taken March and September 2011, August 2012, and April 2013; April 2013 VA opinion).  Further, the Veteran has a self-interest in reporting a greater severity of hearing loss to advance his claim.  Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence).  Due to the inconsistency with the additional clinical evidence and April 2013 VA opinion, the Board does not consider the Veteran and G.B.'s lay statements to be credible.  Madden, 125 F. 3d at 1481.  Without credible evidence that hearing loss precludes employment, TDIU is not for further consideration.  


ORDER

A compensable initial rating for hearing loss is denied.



____________________________________________
J.A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs