Citation Nr: 1323222	
Decision Date: 07/19/13    Archive Date: 07/24/13

DOCKET NO.  10-27 676	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to an increased rating for bilateral hearing loss, evaluated as 40 percent disabling.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

K. Neilson, Counsel


INTRODUCTION

The Veteran had active military service from March 1958 to March 1960.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

On November 1, 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge, sitting at the RO.  A transcript of that hearing has been associated with the record.

The instant matter was previously before the Board in January 2013, at which time it was remanded for the agency of original jurisdiction (AOJ) to seek clarification of the report of an October 2010 private audiological examination.  On remand, the Veteran was also afforded A VA audiological examination and, based on the results of that examination, the Appeals Management Center (AMC) issued a June 2013 decision wherein the Veteran's disability rating for his bilateral hearing loss was increased to 40 percent, effective December 7, 2009.  Because less than the maximum available benefit for a schedular rating was awarded for that disability, the claim remains properly before the Board.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); AB v. Brown, 6 Vet. App. 35 (1993).

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

Since the filing of the Veteran's claim, his bilateral hearing loss has been manifested by hearing impairment corresponding to no worse than auditory acuity Level IX in the right ear and Level VI in the left ear.

CONCLUSION OF LAW

The criteria for a disability rating in excess of 40 percent for service-connected hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Notice and Assistance

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim.  The VCAA also requires VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.

The VCAA notice requirements apply to all five elements of a service connection claim.  These are: (1) veteran status; (2) existence of a disability; (3) a connection between a 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).

Regarding VA's duty to notify with respect to increased rating claims, the VCAA requires only 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, as well as general notice regarding how disability ratings and effective dates are assigned.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009); Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010).  

The RO received the Veteran's claim for an increased disability evaluation for his service-connected hearing loss in December 2009.  That same month, the RO sent to the Veteran a letter notifying him of the evidence required to substantiate his claim, which letter informed him of the need to submit evidence showing that his service-connected hearing loss disability had increased in severity.  The letter advised the Veteran of the information already in VA's possession and the evidence that VA would obtain on his behalf, as well as of the evidence that he was responsible for providing to VA, to include any records not in the possession of a Federal agency.  

The letter also included the notice elements required by Dingess for how VA determines disability ratings and effective dates and stated that in determining the appropriate disability rating, the RO would consider that impact of the disability and its symptoms on employment.  The RO informed the Veteran that he should submit evidence regarding how his disability affected his ability to work.  The letter further stated that the Veteran could submit statements from individuals who were able to describe their observations of the Veteran's disability and the way in which it had worsened, as well as his own lay statements in support of his claim.  

The Veteran has not disputed the contents of the VCAA notice in this case.  Further, the Board finds that the December 2009 notice letter complies with the requirements of 38 U.S.C.A. § 5103(a), and afforded the Veteran a meaningful opportunity to participate in the development of his claim.  Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied.

Regarding the duty to assist, the Board finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claim.  All available relevant evidence pertaining to the Veteran's increased rating claim has been obtained.  The evidence includes private medical records, VA examination reports, as well as statements from the Veteran and his wife, to include their November 2012 hearing testimony.  The Veteran has not indicated that there are outstanding records for the time period in question that VA should have obtained, and the Board is aware of none.

In this regard, the Board notes that the matter was previously remanded for the AOJ to contact the provider of an October 2010 private audiogram to determine if that audiogram and examination was performed by a state-licensed audiologist.  It was also requested that the AOJ request the private audiologist to provide the values for the controlled speech discrimination test (Maryland CNC), and a report of the puretone threshold averages.  Although the Board's remand directives were not fully complied with, the Board finds that given the information contained in the May 2013 VA audiological examination report and the fact that the AMC increased to the Veteran's disability rating to 40 percent, effective from the date of his increased rating claim, another remand is not necessary.  This is so because, as noted in its previous remand, it appeared that the October 2010 private audiogram supported a rating of 40 percent, which rating has been granted.  

Further, the Veteran has been afforded several VA examinations in connection with his claim for an increased rating for his bilateral hearing loss.  The examination reports contain sufficient evidence by which to evaluate the severity of the Veteran's hearing loss in the context of the rating criteria and throughout the appeal period.  They also address the effect of the Veteran's hearing loss on his occupational and social functioning.  Accordingly, the Board finds that VA has properly assisted the Veteran by affording him adequate VA examinations and that the duty-to-assist requirements have been met.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

II.  Analysis

Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012).  "Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern."  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings.  Id.  For increased rating claims, staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2008).  Further, "[w]here 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).

Here, the Veteran's service-connected hearing loss is evaluated as 40 percent disabling under 38 C.F.R. § 4.85, DC 6100.  Under DC 6100, hearing loss is evaluated in accordance with the findings obtained on audiometric examination.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (providing that disability ratings for service-connected hearing impairments are determined through mechanical application of the disability rating schedule to the results of audiometric evaluations).  The evaluations assigned for 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, together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies 1,000; 2,000; 3,000; and 4,000 Hertz (cycles per second).  The degrees of disability for bilateral hearing loss are reflected in eleven auditory acuity levels in the rating schedule, designated from Level I for essentially normal acuity through Level XI for profound deafness.  See 38 C.F.R. § 4.85, DC 6100.  As set forth in the rating schedule, Tables VI, VIa, and VII are used to calculate the disability evaluation to be assigned.  See id.
VA regulations further provide that in cases of exceptional hearing loss, when the pure tone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 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, and each ear is to be evaluated separately.  38 C.F.R. § 4.86(a) (2012).  When the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever would result in the higher numeral.  38 C.F.R. § 4.86(b).

Relevant to the issue on appeal, results of audiometric testing conducted as part of a February 2010 VA audiology examination were, in relevant part, as follows:



HERTZ



1000
2000
3000
4000
RIGHT
55
65
95
90
LEFT
50
60
60
60

Puretone averages were 76.25 decibels for the right ear and 57.50 decibels for the left ear.  Speech audiometry revealed speech recognition ability of 52 percent in the right ear and of 68 percent in the left ear, using Maryland CNC tests.  

Application of the above audiogram results to Table VI reveals Level VIII hearing acuity in the right ear and Level V hearing acuity in the left ear.  38 C.F.R. § 4.85, Table VI.  (In this regard, the Board notes that the Veteran's left ear pure tone threshold average falls between two ranges of puretone threshold averages; however, a Level V hearing acuity results regardless of which range is considered.)  Application of the above audiogram results for the Veteran's right ear to Table VIa reveals either Level VI or Level VII hearing acuity for the Veteran's right ear, depending on whether his right ear puretone average is rounded up or down.  38 C.F.R. § 4.85, Table VIa.  Notably, consideration of right ear hearing loss based only on puretone threshold average under Table VIa does not result in a higher numerical designation and thus, the Board will rate the Veteran's hearing loss based on application of the above audiogram results to Table VI.  38 C.F.R. § 4.86a.  Level VIII in the poorer ear and Level V hearing acuity in the better ear results in a 30 percent disability evaluation in accordance with the standards found in Table VII.  38 C.F.R. § 4.85, Table VII.  Thus, the February 2010 VA examination report does not support the assignment of a rating greater than the currently assigned 40 percent.  Id.

The Veteran also submitted the copy of an October 2010 private audiogram.  Although hearing thresholds were not numerically itemized on the report or by the private physician who reviewed the audiogram, numerical values can be inferred from the audiometric chart.  See Kelly v. Brown, 7 Vet. App. 471, 474 (1995) (stating that as fact-finding is a proper function of the Board, the Board is permitted to interpret the graphical representations contained in the audiograms into numerical results).  The October 2010 graphical representations appear to reflect that puretone thresholds, in decibels, were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
50
70
90
100
LEFT
45
60
65
60

Based on those numerical results, puretone averages would have been 77.5 decibels in the right ear and 57.5 decibels in the left ear.  Though not certified as Maryland CNC test results, speech audiometry revealed speech recognition ability of 48 percent in the right ear and of 64 percent in the left ear at the time of the October 2010 audiogram.  Applying the results of the private audiogram to Table VI reveals Level IX hearing acuity in the right ear and Level VI hearing acuity in the left ear.  Application of those numerical designations to Table VII results in the assignment of a 40 percent disability rating based on the October 2010 private audiogram.  38 C.F.R. § 4.85, Table VII.  Thus, the October 2010 private audiological examination report does not support the assignment of a rating greater than the currently assigned 40 percent.  Id.

Results of audiometric testing conducted during an August 2012 VA audiology examination were, in relevant part, as follows:



HERTZ



1000
2000
3000
4000
RIGHT
60
80
90
100
LEFT
50
65
65
55

Puretone averages were 82 decibels for the right ear and 59 decibels for the left ear.  Speech audiometry revealed speech recognition ability of 64 percent in the right ear and of 82 percent in the left ear, using Maryland CNC tests.  

Application of the above audiogram results to Tables VI reveals Level VIII hearing acuity in the right ear and Level IV hearing acuity in the left ear.  38 C.F.R. § 4.85, Table VI.  Notably, consideration of right ear hearing loss based only on puretone threshold average under Table VIa does not result in a higher numerical designation and thus, the Board will rate the Veteran's hearing loss based on application of the above audiogram results to Table VI.  38 C.F.R. § 4.86a.  Application of those numerical designations to Table VII results in the assignment of a 20 percent disability rating based on the August 2012 audiogram.  38 C.F.R. § 4.85, Table VII.  Thus, the August 2012 VA examination report does not support the assignment of a rating greater than the currently assigned 40 percent.  Id.

Results of audiometric testing conducted as part of a May 2013 VA audiology examination were, in relevant part, as follows:



HERTZ



1000
2000
3000
4000
RIGHT
65
95
105
105
LEFT
60
75
75
75

Puretone averages were 92 decibels for the right ear and 71 decibels for the left ear.  Speech audiometry revealed speech recognition ability of 54 percent in the right ear and of 80 percent in the left ear, using Maryland CNC tests.

Application of the above audiogram results to Table VI reveals Level VIII hearing acuity in the right ear and Level IV hearing acuity in the left ear.  38 C.F.R. § 4.85, Table VI.  Application of those numerical designations to Table VII results in the assignment of a 20 percent disability rating based on the May 2013 audiogram.  38 C.F.R. § 4.85, Table VII.  However, application of these results to Table VIa (The findings meet the criteria for an exceptional pattern of hearing loss in each ear.  See 38 C.F.R. § 4.86) reveals Level IX hearing acuity in the right ear and Level VI hearing acuity in the left ear, which corresponds to a 40 percent rating.  38 C.F.R. § 4.85, Tables VIa, VII.  Thus, the May 2013 VA examination report does not support the assignment of a rating greater than the currently assigned 40 percent.  Id.

In consideration of the evidence of record, the Board finds that, for the entirety of the claim period, audiological evaluation reflects that the Veteran's hearing loss has been manifested by no worse than Level IX hearing impairment in the right ear and Level VI hearing impairment in the left ear, which results in a 40 percent disability rating under 38 C.F.R. § 4.85, DC 6100.  Consequently, the Board concludes that the criteria for rating in excess of 40 percent have not been met.  See 38 C.F.R. § 4.85, DC 6100.  The Board in no way discounts the difficulties that the Veteran experiences as a result of his bilateral hearing loss to include not being able to enjoy conversations with friends, hear in church, or understand what people are saying.  However, because hearing loss is a disability requiring a "mechanical application of the rating schedule," the Board cannot find a basis in law or regulation to support a disability rating in excess of 30 percent in this case.  See Lendenmann, supra.

The above determination is based upon consideration of applicable rating provisions.  It should also be pointed out that there is no showing that the Veteran's hearing loss has reflected so exceptional or unusual a disability picture as to warrant referral for consideration of a higher evaluation on an extra-schedular basis.  See 38 C.F.R. § 3.321(b)(1).  The symptoms of his disability have been reflected by the schedular criteria.  In regards to hearing loss, the February 2010, August 2012, and May 2013 VA examination reports describe the effects of the Veteran's hearing impairment on his occupation and daily life.  See Martinak v. Nicholson, 21 Vet. App. 447 (2007).  It was noted that the Veteran has difficulty hearing conversational speech, especially in the presence of background noise.  Such an effect does not take the Veteran's case outside the norm as to require consideration of a higher evaluation on an extra-schedular basis.  See 38 C.F.R § 3.321(b)(1).  Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted.  See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).

Moreover, the August 2012 VA audiologist concluded that the Veteran's hearing loss did not affect his employability at that time.  As such, the Board finds that the issue of entitlement to a total disability evaluation based on individual unemployability (TDIU) has not been raised by the evidence of record as part of the Veteran's increased rating claim.  See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009) (holding that the issue of entitlement to TDIU is part of an increased rating claim when that issue is raised by the record); see also Comer v. Peake, 552 F.3d 1362, 1366 (Fed.Cir.2009) (holding that the issue of entitlement to TDIU is raised whenever there is "cogent evidence of unemployability, regardless of whether [the claimant] states specifically that he is seeking TDIU benefits.").

For the foregoing reasons, the Board finds that the claim for a disability rating in excess of 40 percent for service connected hearing loss must be denied.  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 for an increased rating, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Entitlement to a disability rating in excess of 40 percent for service-connected bilateral hearing loss is denied.



____________________________________________
THOMAS J. DANNAHER 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs