Citation Nr: 1322867 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 09-39 902 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a compensable disability rating for a left ear hearing loss disability. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty from June 1978 to February 1987; May 20, 2002, to September 26, 2002; and February 26 to October 15, 2003. This matter comes before the Board of Veterans Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In June and November 2008 rating decisions, the RO continued non-compensable evaluations for the Veteran's service-connected left ear hearing loss disability. In December 2012, the Veteran and his wife testified at a hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is included in the Veteran's VA claims folder. In March 2013, the Board remanded this matter for further development, which has been completed, and the case has been returned to the Board for appellate consideration. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. FINDINGS OF FACT By history, the Veteran has demonstrated at worst Level I hearing loss in the left ear. A greater hearing loss disability has not been demonstrated at any time during the pendency of the Veteran's claim. CONCLUSION OF LAW The criteria for a compensable evaluation for left ear hearing loss disability have not been met. 38 U.S.C.A. §§ 3.321, 5107 (West 2002); 38 C.F.R. § 4.85 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Stegall Concerns As noted above, the Board remanded this matter in March 2013. The Board instructed the Appeals Management Center (AMC) to contact the Veteran in writing and inform him that he may submit any evidence regarding his hearing disability that is not already of record, ensure that all VA treatment records pertaining to the Veteran are included in the Veteran's VA claims folder, provide the Veteran with an audiological examination, and to readjudicate the claim. Thereafter, in an April 2013 letter, the AMC requested additional evidence from the Veteran, additional VA treatment records were associated with the Veteran's electronic claims folder, he was provided an audiological examination in May 2013, and his claim was readjudicated in a June 2013 supplemental statement of the case. Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Duties to Notify and Assist In correspondence dated in January 2008, prior to the June and November 2008 rating decisions, and in September 2008 and April 2013, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The January 2008 letter informed the Veteran that in order to establish higher rating, the evidence would need to show that his left ear hearing loss disability had increased in severity. The January 2008 letter also apprised the Veteran of the evidence necessary to establish higher ratings for his claimed disability and of the process by which disability ratings and effective dates are established. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). All identified and available treatment records have been secured. As the Board will discuss in detail in its analysis below, the Veteran has been provided with VA examinations throughout the appeal. As noted in the Board's March 2013 remand, VA examination reports dated in January and October 2008 offer no probative value as the examiners determined that the hearing tests provided were not consistent or adequate for rating purposes. Accordingly, pursuant to the Board's March 2013 remand, he was provided another examination in May 2013. However, the May 2013 examiner indicated that testing of puretones were invalid because the volunteered puretone thresholds were not in agreement with speech threshold testing, despite the Veteran having been reinstructed multiple times. The Veteran has been provided three VA examinations, all of which have yielded invalid results. There is no indication that further testing would result in valid variables. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c) (4) (2012); Barr, 21 Vet. App. at 312. Additionally, the Veteran has not stated nor is there evidence indicating that there has been a material change in the severity of his left ear hearing loss disability since he was last examined in May 2013. See 38 C.F.R. § 3.327(a) (2012). 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 (April 7, 1995). Furthermore, the Board recognizes that in Martinak v. Nicholson, 21 Vet. App. 447 (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 disability was somehow deficient, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. In this case, the Board observes that the most recent VA examiner who conducted the March 2013 examination addressed the functional effects of the Veteran's hearing loss disability, as will be discussed in detail below. Thus, as contemplated by Martinak and directed by 38 C.F.R. § 4.10, the VA examiner discussed the functional effects of the Veteran's left ear hearing problems in the most recent examination report. Analysis The Veteran essentially asserts that hearing loss in the left ear is more disabling than contemplated by the current non-compensable evaluation. Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition. Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7. While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and 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). The United States Court of Appeals for Veterans Claims (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). 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. VA disability compensation for impaired hearing is derived from the application in sequence of two tables. See 38 C.F.R. § 4.85(h), Table VI, Table VII. Table VI correlates the average puretone threshold (derived from the sum of the 1000, 2000, 3000, and 4000-Hertz thresholds divided by four) with the ability to discriminate speech, providing a Roman numeral to represent the correlation. The table is applied separately for each ear to derive the values used in Table VII. Table VII is used to determine the disability rating based on the relationship between the values for each ear derived from Table VI. See 38 C.F.R. § 4.85. The assignment of a rating for hearing loss is achieved by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Where the impaired hearing is only service-connected for one ear, the non-service-connected ear is assigned a numeric designation Level of "I". See 38 C.F.R. § 4.85(f). As noted by the Board in the March 2013 remand, VA examination reports dated in January and October 2008 offered no probative value as the examiners determined that the hearing tests provided were not consistent or adequate for rating purposes. The Board also determined that the only other evidence, a private audiogram dated in August 2007, was of limited probative value as there was no evidence whether the report was rendered by a state-licensed audiologist as required by 38 C.F.R. § 4.85 (2012). Accordingly, the Board remanded for another examination. The Veteran was provided another VA examination in May 2013. The examiner indicated that puretone thresholds could not be tested, and that test results were not valid. The evaluation was discontinued because the volunteered puretone thresholds were not in agreement with speech threshold testing. The Veteran had normal tympanic membrane movement along with normal ipsilateral and contralateral acoustic reflexes in both ears, and the Veteran was reinstructed multiple times. The examiner noted sensorineural hearing loss bilaterally. Thus, in this case, the record does not include actual audiometric testing results upon which to evaluate the Veteran's claim for increase, despite the RO's attempt, on three separate occasions, to obtain such information. As indicated, on all three occasions, the VA audiologists were unable to accurately assess the level of the Veteran's left ear hearing loss due to invalid results. An audiological evaluation to properly determine the level of the Veteran's hearing loss cannot be accomplished without the Veteran's full cooperation. In order for VA to process claims, individuals applying for VA benefits have a responsibility to cooperate with the agency in the gathering of the evidence necessary to establish allowance of benefits. See Morris v. Derwinski, 1 Vet. App. 260, 264 (1991). The Board also emphasizes that VA's duty to assist is not always a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see Swann v. Brown, 5 Vet. App. 229, 233 (1993). In this case, all three of the VA audiological evaluation reports demonstrate that the Veteran was instructed on multiple occasions and there is no indication that he has been fully cooperative with VA in obtaining evidence that is probative to his claim, which consists of valid results from properly administered audiometric testing. There is no indication in that record that the Veteran's lack of participation was due to a medical reason. Therefore, the Board finds that the Veteran is not entitled to another audiological evaluation in connection with the current claim for increase. As there is no current evidence by which to evaluate the Veteran's left hearing loss, the Board will note the most recent valid results which were shown in the December 2005 VA examination report. The following pure tone thresholds, in decibels, were recorded: HERTZ 1000 2000 3000 4000 Avg. LEFT 20 30 40 65 39 The average pure tone threshold for the left ear was 39 decibels and speech discrimination was 96 percent in the left ear. By intersecting the average pure tone decibel loss falling between 0 and 41 with the percent of discrimination from 92 and 100, the resulting numeric designation from Table VI for the left ear is I. Table VII must then be consulted for assignment of a percentage evaluation and assignment of a diagnostic code. With a numeric designation of I for the left ear and I for the right ear (as the non-service connected ear), the point of intersection on Table VII requires assignment of a non-compensable percent rating under Diagnostic Code 6100. See 38 C.F.R. § 4.85(h). Thus, by history, the Veteran has demonstrated at worst Level I hearing loss in the left ear. As described above, a greater hearing loss disability has not been demonstrated at any time during the pendency of the Veteran's claim. The Board in no way discounts the difficulties that the Veteran experiences as a result of his left ear hearing loss. However, it must be emphasized that 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. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). In other words, the Board is bound by law to apply VA's rating schedule to audiometric and speech discrimination testing results. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.85. To the extent that the Veteran contends that his left ear hearing loss disability is more severe than contemplated by the current evaluation, the Board observes that the Veteran, while competent to report symptoms, is not competent to report that his hearing acuity is sufficient to warrant a higher evaluation under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise which the Veteran has not been shown to have. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The Board has also considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. 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 based 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) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board 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 Board must determine whether the Veteran's 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. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's various disabilities with the established criteria shows that the rating criteria reasonably describe the Veteran's disability levels and symptomatology. Specifically as to left ear hearing loss disability, the Veteran reported occasional difficulty asking people to repeat themselves. The Board notes that the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability. In support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86. In this regard, the rating criteria for hearing loss were last revised, effective June 10, 1999. See 64 Fed. Reg. 25206 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17295 (April 12, 1994). Accordingly, the Board finds that functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria. Therefore, the Veteran's struggle to comprehend verbal conversations is a factor contemplated in the regulations and rating criteria as defined. Accordingly, the Board determines that the Veteran's complaints of hearing difficulty have been considered under the numerical criteria set forth in the rating schedule. In short, the rating criteria reasonably describe the Veteran's disability levels and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b) (1) is not warranted. Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service- connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that his left ear hearing loss disability renders him totally unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised. The preponderance of the evidence is against the claim for a higher rating; there is no doubt to be resolved; and a compensable rating for a left ear hearing loss is not warranted for any period on appeal. See Hart v. Mansfield, 21 Vet. App. 505 (2007). ORDER Entitlement to a compensable disability rating for a left ear hearing loss disability is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs