Citation Nr: 1322223	
Decision Date: 07/11/13    Archive Date: 07/18/13

DOCKET NO.  13-02 055	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to a compensable evaluation for service-connected hearing loss of the left ear.


REPRESENTATION

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


ATTORNEY FOR THE BOARD

Bernard T. DoMinh, Counsel






INTRODUCTION

The Veteran served on active duty from April 1955 to February 1957.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision by the St. Paul, Minnesota, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the Veteran's claim for a compensable evaluation for service-connected hearing loss of the left ear.

Please note this appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2012).  


FINDINGS OF FACT

The Veteran's service-connected hearing loss of his left ear is shown to have been productive of no more than a Level IX designation that combines with the Level I designation in the non-service connected right ear, resulting in a noncompensable rating.


CONCLUSION OF LAW

The criteria for the assignment of a compensable evaluation for the service-connected hearing loss of the left ear have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Tables VI -VII (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board notes at the outset that, in accordance with the VCAA, VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

With respect to the issue of entitlement to an increased (compensable) rating for unilateral left ear hearing loss, the notice requirements of a VA compensation claim have five elements: 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.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must also: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements).  

The current appeal stems from a claim for a rating increase that was filed in July 2012.  The Board notes at this juncture that prior to this application, in a January 2011 rating decision, the RO had granted the Veteran's original claim for service connection for left ear hearing loss and assigned an initial noncompensable evaluation in a rating decision, effective November 2007.  The claims file does not indicate that the Veteran submitted any new and material evidence pertinent to his service-connected left ear hearing loss within the one-year appellate period following the January 2011 rating decision.  Thusly, the January 2011 rating decision is final with respect to the initial noncompensable evaluation assigned and the current appeal pertains only to the August 2012 rating decision.  See 38 C.F.R. § 3.156(b) (2012); Bond v. Shinseki, 659 F.3d 1362 (2011).  

The Board observes that following receipt of the Veteran's claim for an increased rating for left ear hearing loss, a VCAA notice letter addressing the applicability of the VCAA to this claim and of VA's obligations to the appellant in developing the claim that satisfied the above-described mandates, as well as the requirements that the claimant be informed of how VA calculates degree of disability and assigns an effective date for the disability, as prescribed in Dingess v. Nicholson, 19 Vet. App. 473 (2006), was dispatched to the Veteran in July 2012.  No timing of notice defect with respect to this VCAA notice letter exists, as fully compliant notice was provided prior to the initial adjudication of the claim in the August 2012 RO rating decision now on appeal.

VA also has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim").  This duty includes assisting the claimant in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant).

VA informed the claimant of its duty to assist in obtaining records and supportive evidence.  As the current claim was filed on July 2012, the pertinent period at issue commences one year prior to date of claim, pursuant to 38 C.F.R. § 3.400(o)(2) (2012).  In this regard, the Board observes that all relevant evidence for the period at issue have been obtained and associated with the claims file.  VA has provided the Veteran with a VA audiological examination in conjunction with his claim on August 2012.  Although the clinician who conducted this examination did not have the Veteran's claims file available for review, this does not render the examination report invalid for rating purposes as the examination involved objective tests to evaluate and quantify the Veteran's hearing loss that adequately present a picture of the state of his impairment for the relevant period at issue.  

The Board notes that, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the United States Court of Appeals for Veterans Claims (Court) held that, relevant to VA audiological examinations, 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.  In this regard, in a fairly recent VA audiological consultation conducted in February 2010, the treating clinician specifically noted the Veteran's complaint that he had difficulty hearing in crowds and groups and that it was still difficult for him to hear in the presence of background noise, even with the help of an electronic hearing aid.  Although the VA examiner did not specifically address the functional effects caused by the Veteran's service-connected left ear hearing loss in the subsequent current examination of August 2012, the Board finds that there is no resulting prejudice to the Veteran's claim as there is sufficient contemporaneous evidence that discusses the functional effects of his unilateral hearing impairment.  As such, the deficits of the August 2012 VA examination are resolved and the Board may proceed with a decision.  

In this regard, the Board notes that the Court's rationale in requiring an examiner to consider the functional effects of a Veteran's hearing loss disability involves the potential application of 38 C.F.R. § 3.321(b) in considering whether referral for an extraschedular rating is warranted.  Specifically, the Court noted that, "unlike the rating schedule for hearing loss, § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extraschedular rating is warranted.  The [VA] Secretary's policy [requiring VA audiologists to describe the effect of a hearing disability on a Veteran's occupational functioning and daily activities] facilitates such determinations by requiring VA audiologists to provide information in anticipation of its possible application."  Id.  

Although the August 2012 VA examiner failed to address the functional effects of the Veteran's unilateral hearing loss disability, the Board notes that other evidence of record, to specifically include the February 2010 VA examination report as well as the Veteran's written contentions  relating to his claim, adequately addresses this issue.  Therefore, while the August 2012 VA examination is defective under Martinak, the Board finds that no prejudice results to the Veteran in that the functional effects of his left ear hearing loss disability are adequately addressed by the entirety of the record.  The record is therefore sufficient for the Board to consider whether referral for an extraschedular rating is warranted under 38 C.F.R. § 3.321(b).

Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the claimant in the evidentiary development of his claim for an increased (compensable) rating for unilateral hearing loss decided herein, and thus no additional assistance or notification is required.  The claimant has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The Board will therefore proceed with the adjudication of the left ear hearing loss issue on appeal.

The Board has thoroughly reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant).

The Board must assess the credibility and weight of all 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.  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.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Separate diagnostic codes identify the various disabilities.  Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3 (2012).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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).  

While the Veteran's entire history is reviewed when assigning a disability evaluation (see 38 C.F.R. § 4.1), where an award of service connection has already been established and only 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).  However, 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 Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).  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.  An evaluation of the level of disability present also includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment.  38 C.F.R. § 4.10 (2012).

Only independent medical evidence may be considered to support medical findings.  The Board is not free to substitute its own judgment for that of such an expert.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).  Although lay persons such as the Veteran are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case (i.e., the objectively quantified severity of his unilateral hearing loss at specific frequencies) falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Consequently, his contentions alone regarding the perceived severity of his left ear hearing loss cannot constitute competent medical evidence for purposes of objectively rating his level of impairment.  38 C.F.R. § 3.159(a)(1) (2012).  The Board notes in this regard that the determination of the level of hearing loss for rating purposes is through audiometric testing using instrumentation that a layperson cannot approximate through his or her sensory perception.
 
The severity of a hearing loss disability is determined by applying the criteria set forth at 38 C.F.R. § 4.85 (2012).  Under these criteria, evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second.  The tests are conducted without the use of hearing aids.  See 38 C.F.R. § 4.85 (2012).

To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness.  38 C.F.R. § 4.85 (2012).  To evaluate an individual's level of disability, Table VI is used to assign a Roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the pure tone threshold average.  38 C.F.R. § 4.85(b) (2012).  Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment for each ear.  38 C.F.R. § 4.85(e) (2012).

If impaired hearing is service-connected in only one ear (as in the present case), in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I.  38 C.F.R. § 4.85(f) (2012). 

If puretone thresholds in each of the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more, an evaluation can be based either on Table VI or Table VIa, whichever results in a higher evaluation.  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, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa, whichever results in the higher numeral, and that numeral will then be elevated to the next higher Roman numeral.  38 C.F.R. § 4.86(b) (2012).

An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test.  38 C.F.R. § 4.85(a) (2012).

The report of an August 2012 VA examination shows that the Veteran used electronic hearing aids to assist his impaired hearing.  His pure tone thresholds, in decibels, at the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
15
15
20
LEFT
75
75
70
85
95

Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 44 percent in the left ear.  Average hearing thresholds across the range of 1000 - 4000 Hertz was 16 decibels in the right ear and 81 decibels in the left ear.  The examining audiologist determined that the Veteran had normal hearing acuity in his right ear that was not deemed to be disabling by VA standards.  His left ear, however, was assessed as having severe to profound sensorineural hearing loss.

These audiological findings obtained in August 2012 correspond to Level I hearing in the right ear.  38 C.F.R. § 4.85, Table VI (2012).  In any case, in assessing the severity of the Veteran's service-connected unilateral hearing loss, the hearing level in the non-service-connected ear is assigned a numerical designation of Level I.  The audiological findings obtained in August 2012 with regard to the Veteran's service-connected left ear correspond to a Level IX hearing.  38 C.F.R. § 4.85, Table VI (2012).  Under Table VII, a designation of Level I hearing in the right ear and Level IX hearing in the left ear produces a noncompensable evaluation.  38 C.F.R. § 4.85, Diagnostic Code 6100 (2012).  

As the Veteran's hearing thresholds in his service-connected left ear are all greater than 55 decibels in each of the frequencies 1000, 2000, 3000, and 4000 Hertz, he also meets the criteria for exceptional patterns in hearing impairment to be afforded consideration under 38 C.F.R. § 4.86(a).  This would result in a designation of Level VII for his left ear, which does not provide an avenue for a compensable rating on application of Table VII.  The left ear does not demonstrate the required pure tone thresholds for application of 38 C.F.R. § 4.86(b).

Per Martinak v. Nicholson, 21 Vet. App. 447 (2007), the clinical evidence (including the report of a February 2010 VA audiological consultation) and the Veteran's written contentions indicate that the primary impact of his service-connected left ear hearing loss on his occupational capacity and his usual daily activities is that he experienced great difficulty hearing when he was in crowds and groups and that it was difficult for him to hear in the presence of background noise, even with the help of prescribed electronic hearing aids.  In his substantive appeal dated in January 2013, the Veteran stated that his left ear hearing loss was severe enough that he had to turn up the volume on his electronic hearing aids 1 to 2 increments above the computer pre-set levels.

The Board in no way discounts the difficulties that the Veteran experiences as a result of his unilateral hearing loss and the inconvenience of having to use hearing aids.  However, the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained.  Hence, 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.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results obtained on VA-authorized clinical examinations.  See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012).

The Board acknowledges that the Veteran is competent to report symptoms of his hearing loss disability such as his need to ask people to speak up or repeat themselves or just the overall difficulty he experiences in hearing people in crowded situations.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994).  Additionally, he is credible in his reports of symptoms and their effect on his activities.  He is not however competent to identify a specific level of disability of his disability according to the appropriate diagnostic code.  Such competent evidence concerning the nature and extent of the Veteran's service-connected hearing loss disability has been provided by VA medical professionals who have examined him and utilized the required testing methodology.  The medical findings directly address the criteria under which this disability is evaluated.  The Board finds these records to be the only competent and probative evidence of record, and therefore is accorded greater weight than the Veteran's subjective complaints of increased symptomatology.  See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991).  

In sum, the Board finds that the clinical evidence does not demonstrate left ear hearing loss to a compensable level of impairment on strict application of the rating schedule at any time during the pendency of this claim.

The Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, the RO 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 RO or Board must determine whether the Veteran's exceptional 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.

Although the Veteran is now 79 years old and is presently retired, the evidence indicates that his service-connected left ear hearing loss causes no significant effects in occupational functioning.  Examination in August 2012 shows that his hearing level remains normal in his right ear.  While it is conceded that his unilateral hearing loss disability can nevertheless impose a degree of interference with his occupational functioning, there is no objective evidence in the present case that demonstrates that the Veteran's hearing loss has actually resulted in a marked level of interference with his capacity for employment.  As such, the Board cannot concede that the Veteran's hearing loss alone causes marked interference with his capacity for employment.  The level of impairment objectively demonstrated is contemplated by the rating criteria for a noncompensable evaluation.  The Board thus finds no reason to refer the case to the Compensation and Pension Service for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b) (2012).  That is, there is no evidence of exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, to suggest that the Veteran's service-connected left ear hearing loss is not adequately addressed by the regular rating schedule.  Although the Veteran may have difficulty hearing spoken conversations in crowds or groups, or where there is background noise present because of his impaired hearing, the evidence does not reflect that his service-connected unilateral hearing loss affects his daily life in a markedly unusual or exceptional way.  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.  VAOPGCPREC 6-96.  See also, Bagwell v. Brown, 9 Vet. App. 237, 238-39 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). 

In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2011); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  His claim for a compensable evaluation for hearing loss of the left ear is therefore denied.





ORDER

A compensable evaluation for service-connected hearing loss of the left ear is denied.  



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



Department of Veterans Affairs