Citation Nr: 1323213	
Decision Date: 07/19/13    Archive Date: 07/24/13

DOCKET NO.  10-30 448	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to a rating in excess of 50 percent for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

E. Joyner, Counsel


INTRODUCTION

The Veteran served on active duty from June 1944 to December 1945.  This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Tiger Team Special Processing Unit at the Regional Office (RO) in Cleveland, Ohio.  Jurisdiction of the claim resides with the RO in Oakland, California.

When the case was previously before the Board, it was remanded in January 2013 and April 2013 for additional development.

In June 2013 the Veteran submitted additional medical evidence after the case was certified to the Board; however, because the Veteran waived his right to have the RO consider this additional evidence in the first instance, the Board may proceed with the appeal.  38 C.F.R. § 19.9(d)(3) (2012). 

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

Throughout the entire appeal period, the Veteran's bilateral hearing loss is manifested by no worse than Level IX hearing acuity in the right ear and Level VIII hearing acuity in the left ear.


CONCLUSION OF LAW

The criteria for a rating in excess of 50 percent for bilateral hearing loss have not been met.  38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. 

The VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to the effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). 

The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112   (2004).

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326 (2012).  An October 2008 letter satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Moreover, the October 2008 letter was sent prior to the initial unfavorable decision.

VA examinations were conducted in October 2008, November 2009, and January 2013; the Veteran has not argued, and the record does not reflect that these examinations were inadequate for rating purposes.  The Board finds that the examinations are adequate for adjudication purposes because they document the Veteran's subjective complaints and history, were based on an appropriate audiological examination of the Veteran, and provided sufficient information to address the rating criteria for the disability on appeal.  38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  Further, the Veteran was provided an opportunity to discuss the impact on his daily functioning, as well as his audiological history and concerns, and his responses are documented in the January 2013 examination report.  See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007).

There is no indication in the record that any additional evidence relevant to the issue decided herein is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). 

A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  In this regard, the Board is satisfied as to compliance with the instructions from its January 2013 and April 2013 remands.  Specifically, the January 2013 Board remand instructed the RO to obtain all VA treatment records dating from December 2009 to the present from the VA Medical Center in Sacramento, California, and all associated clinics.  The January 2013 remand also instructed the RO to provide the Veteran with a new VA audiological examination to determine the current severity of his bilateral hearing loss.  The April 2013 remand instructed the RO to obtain the same VA treatment records dating from December 2009 to the present.  The Board finds that the RO has complied with the Board's instructions in that the requested VA treatment records have been obtained and the January 2013 VA examination report substantially complies with the Board's January 2013 remand directives.  Stegall v. West, 11 Vet. App. 268 (1998).

Legal Analysis

Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012).  Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21 (2012). 

The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability.  Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply.  Fenderson v. West, 12 Vet. App. 119 (1999).  Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports.  Id.   In all claims for increase, VA has a duty to consider the possibility of assigning staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

Evaluations of defective hearing 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 as measured by puretone audiometric tests.  To evaluate the degree of disability resulting from service-connected hearing loss, the Schedule establishes eleven levels of impaired efficiency, numerically designated from Level I to Level XI.  Level I represents essentially normal hearing acuity for VA compensation purposes, with hearing loss increasing with each level to the profound deafness represented by Level XI.  38 C.F.R. § 4.85, Tables VI, VII (2012). 
Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII.  See 38 C.F.R. § 4.85 (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.  Examinations will be conducted without the use of hearing aids.  38 C.F.R. § 4.85(a) (2012).

Exceptional patterns of hearing impairment are addressed in 38 C.F.R. § 4.86.  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.  38 C.F.R. § 4.86(a) (2012).

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.  38 C.F.R. § 4.86(b) (2012).

In this case, the Veteran underwent a VA audiological evaluation in October 2008, which reflects that, on audiological testing, pure tone thresholds of each ear, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
55
75
90
95
79
LEFT
50
65
75
90
70

Speech discrimination scores using the Maryland CNC controlled speech discrimination tests were noted to be 44 percent in the right ear and 52 percent in the left ear.  The examiner noted that the Veteran's greatest difficulty was in situations with background noise.

The Veteran underwent another VA audiological evaluation in November 2009.  The November 2009 VA examination report reflects that, on audiological testing, pure tone thresholds of each ear, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
50
65
65
90
68
LEFT
45
55
65
85
63

Speech discrimination scores using the Maryland CNC controlled speech discrimination tests were noted to be 84 percent in the right ear and 36 percent in the left ear.  The examiner noted that the Veteran's greatest difficulty was in situations with background noise.

A January 2013 VA audiological evaluation report reflects that, on audiological testing, pure tone thresholds of each ear, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
60
70
70
90
73
LEFT
60
65
80
85
73

Speech discrimination scores using the Maryland CNC controlled speech discrimination tests were noted to be 52 percent in the right ear and 68 percent in the left ear.  The examiner noted that the Veteran reported difficulty in conversational speech, and extreme difficulty with telephone communication.  

The Veteran submitted a June 2013 private VA audiological evaluation report, which reflects that, on audiological testing, pure tone thresholds of each ear, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
60
70
-
85
73
LEFT
55
65
-
80
69

The results of the June 2013 private audiometric test were charted, not enumerated.  Because the results as charted are clear and unmistakable even to laypersons, they may be interpreted by the Board.  Savage v. Shinseki, 24 Vet. App. 259 (2011) (noting that the Board may interpret results from a private audiometric graph if it felt it had the expertise); c.f. Kelly v. Brown, 7 Vet. App. 471, 474 (1995).  Speech discrimination scores were noted to be 68 percent in the right ear and 40 percent in the left ear; however, the report does not indicate that such speech discrimination tests were Maryland CNC controlled speech discrimination tests.  

Considering the pertinent evidence in light of the governing legal authority, the Board finds that the claim for a rating in excess of 50 percent for bilateral hearing loss must be denied. 

Initially, the Board finds that the June 2013 private audiological report is not adequate for adjudication purposes because it shows that the Veteran's hearing was not tested at 3000 Hertz.  Moreover, as noted above, it does not indicate that speech discrimination testing was accomplished using the Maryland CNC controlled speech discrimination testing, as is required for examination for hearing impairment for VA rating purposes.  See 38 C.F.R. § 4.85(a).  Therefore, the Board finds that the June 2013 private audiological report is not probative in this case for determining the Veteran's level of hearing disability for purposes of establishing an increased rating for hearing loss consistent with VA regulations.  In any event, and as described in further detail below, the flow of the charted results on the June 2013 private audiological report reflect that the threshold at 3000 Hertz for each ear was approximately 75 decibels.  Based upon this information, the resulting pure tone threshold averages, and even assuming that the speech discrimination scores were obtained using the Maryland CNC word list, the June 2013 private audiological evaluation still does not allow for a rating in excess of 50 percent.  

The Board finds that the October 2008, November 2009, and January 2013 VA examination reports provide adequate information for rating purposes.  Applying the method for evaluating hearing loss to the results of the October 2008 VA examination report, the November 2009 VA examination report, and the January 2013 examination report, the evaluations revealed Level IX hearing in the right ear and Level VIII hearing in the left ear for the first examination, Level III hearing in the right ear and Level IV hearing in the left ear for the second examination, and Level VIII hearing in the right ear and Level VI hearing in the left ear for the third examination, based on application of the reported findings to Table VI.  Application of these findings to Table VII corresponds to no greater than a 50 percent rating under 38 C.F.R. § 4.85, Diagnostic Code 6100.  

The Board notes that the Veteran meets the criteria for an exceptional pattern of hearing, as pure tone thresholds at each of the four specified frequencies has been shown to be 55 decibels or more.  However, even taking into consideration the exceptional pattern of hearing, a higher rating is not warranted.  See 38 C.F.R. § 4.86 (2012).  In this regard, pursuant to Table VIa, the Veteran's hearing is at Level VII in the right ear and Level VI in the left ear for the October 2008 VA examination.  This yields only a 30 percent rating when applied to Table VII.  Similarly, for the November 2009 VA examination, when using Table VIa, the Veteran's hearing is Level V in the both ears.  A 20 percent rating is warranted when these levels are applied to Table VII.  For the January 2013 VA examination using Table VIa, the Veteran's hearing is Level VI in both ears.  A 30 percent rating is warranted when these levels are applied to Table VII.   

Regarding the June 2013 private audiological evaluation, if the Board were to consider that the flow of the charted results reflects that the threshold at 3000 Hertz for each ear was approximately 75 decibels, the average puretone threshold for the right ear would be 73 decibels and the average puretone threshold for the left ear would be 69 decibels.  The puretone threshold results for this examination reflect an exceptional pattern of hearing.  However, when applying the puretone threshold averages to Table Via, such results only yield Level V hearing in the right ear and Level VI hearing in the left ear.  This warrants only a 20 percent rating when these levels are applied to Table VII.  If the Board were to assume that the Maryland CNC controlled speech discrimination tests were used, and applied the percentages and puretone threshold averages from the June 2013 private audiogram to Table VI (not using the exceptional pattern of hearing), the results would yield Level VI hearing in the right ear and Level IX in the left ear.  When these levels are applied to Table VII, only a 40 percent rating is warranted.  

There are no audiological evaluation results of record indicating a higher level of hearing loss during the period of the claim.  Consequently, a rating in excess of 50 percent for the Veteran's bilateral hearing loss is not warranted at any time during the appeal period.

The Board recognizes the Veteran's assertions his hearing loss impacted the ordinary conditions of his daily life and caused him difficulty in understanding speech in situations with background noise and during telephone communications.  While the Board acknowledges the difficulties that the Veteran experiences as a result of his bilateral hearing loss, 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.  Thus, the Board must base its determination on the audiological evaluation results of record, and is bound by law to apply VA's rating schedule based on such results.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012); see also Lendenmann v. Principi, 3 Vet. App. 345 (1992).

In sum, the preponderance of the evidence is against the Veteran's claim for an increased rating at any time during the appeal period.  Hart, 21 Vet. App. at 509.  As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied.  See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. at 54-56.

Extraschedular Consideration

An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 115-116.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation.  38 C.F.R. § 3.321(b) (1) (2012).  Otherwise, the schedular evaluation is adequate, and referral is not required.  Thun, 22 Vet. App. at 116.

The Board finds that the schedular rating for the Veteran's service-connected bilateral hearing loss is adequate.  Ratings in excess of the assigned rating are provided for higher levels of severity of the disability, but for certain manifestations which the medical evidence reflects are not present in the Veteran's clinical picture.  Therefore, the Veteran's disability picture is contemplated by the Rating Schedule; no extraschedular referral is required.  In sum, the record does not reflect that the Rating Schedule is inadequate to contemplate the manifestations of his disability.  Thus, no extraschedular referral is required.

In denying the Veteran's claims for an increased rating, the Board observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (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 service-connected bilateral hearing loss renders him totally unemployable.  Accordingly, the Board concludes that a claim for TDIU has not been raised.









ORDER

Entitlement to a rating in excess of 50 percent for bilateral hearing loss is denied.



____________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs