Citation Nr: 1323500 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 10-19 349 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial compensable evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from January 1953 to January 1955. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida that granted service connection and assigned an initial noncompensable rating. In November 2008, the Veteran submitted additional evidence and the RO continued the previously assigned noncompensable evaluation in an April 2009 rating decision. The Veteran provided testimony pertaining to this appealed issue in the course of a hearing conducted by the undersigned Veterans Law Judge at the RO in February 2012. A transcript of this hearing testimony has been associated with the Veteran's claims folder. This case was previously before the Board in March 2012 and March 2013, at which time the claim was remanded for further evidentiary development. There has been substantial compliance with the mandates of the remand and the Board will proceed to adjudicate the appeal. See Stegall v. West, 11 Vet. App. 268 (1998). 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 For the entire initial rating period, the Veteran has had no worse than Level II hearing acuity in his right ear and Level II hearing loss in his left ear. CONCLUSION OF LAW The criteria for the assignment of an initial compensable evaluation for the service-connected 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, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for the right hip. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. The duty to assist has been met in this case. While all the Veteran's service treatment records may not be now associated with his claims folder, this does not, for the reasons discussed below, prevent the Board from here adjudicating the increased rating matter. All identified and available private medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim. The Veteran has not identified any outstanding medical records. The Veteran was recently afforded a VA examination in connection with the claim. The Board finds that the VA examination obtained in this case is adequate for rating purposes because it provides the necessary clinical findings to evaluate the hearing loss disability under the applicable rating criteria. 38 C.F.R. § 3.159(c)(4). Prior examinations conducted in August 2008 and April 2012 did not appropriately address the effect of the Veteran's hearing loss disability on his daily activities, but a May 2013 VA examination conducted pursuant to the Board's remand instructions which the Board finds sufficient. Pursuant to the March 2012 and March 2013 remands, efforts to obtain certain private medical evidence from a specifically named provider were undertaken. As discussed in more detail below, these efforts were not successful. In a May 2013 letter, the Veteran was notified that VA was unable to obtain the records in accordance with 38 C.F.R. § 3.159(e). Law and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the "present level" of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007). Similarly, where a veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, as is the case here, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. 38 C.F.R. § 4.85. To evaluate the degree of disability for bilateral hearing loss, the Rating Schedule establishes eleven (11) auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. Where there is an exceptional pattern of hearing impairment, a rating based on puretone thresholds alone may be assigned. 38 C.F.R. § 4.86. Such an "exceptional pattern" is not demonstrated in the instant case. Ratings for hearing impairment are derived 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 (1992); see also Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) (indicating that the criteria for evaluating the degree of impairment resulting from hearing loss under the Rating Schedule, unlike extraschedular consideration under section 3.321(b) of the regulations, rely exclusively on objective test results). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). Factual Background/Analysis The Veteran's claim seeking service connection for hearing loss was received by VA on March 31, 2008. Service connection was granted for bilateral hearing loss by the RO in October 2008. A zero percent (noncompensable) evaluation was assigned, pursuant to Diagnostic Code 6100, effective from March 31, 2008. See also 38 C.F.R. §§ 4.85, 4.86. The Veteran perfected an appeal of the zero percent evaluation assigned. A VA audiological examination was afforded the Veteran in August 2008. The Veteran complained of a longstanding progressive hearing loss, to include difficulty hearing the television and people speaking. The Veteran also reported wearing hearing aids. Audiometry revealed that the average puretone thresholds (at 1000, 2000, 3000, and 4000 Hertz) were 51 decibels (dB) in the right ear and 50 dB in the left ear. Speech audiometry revealed that speech recognition ability was 88 percent in the right ear and 84 percent in the left ear. Bilateral sensorineural hearing loss was diagnosed. Of record is also the report of a private audio examination administered the Veteran in December 2008. This report included a diagnosis of mild to profound sensorineural hearing loss with speech recognition scores ranging from 76 to 92 percent. An August 2011 VA audiology consult report shows that the Veteran reported difficulty hearing in all listening environments. He added he wore hearing aids to watch television and if he has company over. While puretone audiometry via air and bone conduction showed the presence of moderate to severe mixed right ear hearing loss, and moderate to profound left ear hearing loss, the examiner determined that the findings were not valid for rating purposes. To this, the examiner mentioned that initial elevation of puretone findings decreased after reinstruction. The results were noted to maybe indicate slight external or middle ear disease. The examiner added that the Veteran's hearing loss had not changed significantly since he was afforded an examination in August 2008. The Veteran was later fitted with hearing aids in September 2011. Because it was unclear what type of testing was used by the Veteran's private audiologist for the December 2008 evaluations, the Board remanded the claim and instructed the RO to contact the private audiologist for clarification. Savage v. Shinseki, 24 Vet. App. 259 (2011). Records were subsequently obtained from the private audiologist, but they were duplicative of records already on file, and did not include a response to the specifically-posed questions. This private audiologist was contacted by means of letters dated in April and May 2013; he did not respond. The Veteran was made aware of this April 2013 non-response by a May 2013 letter. The lack of an adequate response from this private examiner makes it impossible for the Board to utilize those findings contained within the December 2008 audio report in its adjudication of the Veteran's instant claim. Review of the April 2012 VA audio examination shows that the examiner had the Veteran's claims file and his medical records available for review. The Veteran complained of trouble understanding spoken words. Audiometry revealed a puretone threshold average of 55 dB in the right ear and 54 dB in the left ear. Speech recognition was found to be 88 percent in the right ear and 84 percent in the left ear. The examiner stated that the hearing loss did not render the Veteran unemployable, but did not otherwise address the effect of the Veteran's hearing loss disability on his daily activities. Martinak. The Board therefore, in its March 2013 remand, ordered that a clarification be obtained from the audiologist who conducted the April 2012 examination concerning the insufficient Martinak information. If not possible, the Veteran was to be afforded a new audio examination. This examination was conducted in May 2013. Review of the May 2013 VA audio examination shows that the Veteran complained of decreased bilateral hearing acuity. Efforts by the examining audiologist to evaluate the Veteran's bilateral hearing acuity, by the use of both puretone threshold testing and speech discrimination testing, proved to be unsuccessful. The examiner commented that, as to her attempt to perform puretone testing, the Veteran "would not or could not provide valid and reliable responses to behavioral audiometry even after repeated reinstructions." As to the inability to obtain speech recognition scores, the examiner commented that the use of the "speech recognition score is not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of puretone average and speech recognition scores inappropriate." The examiner commented that the Veteran had no difficulty conversing with the examiner, even without his hearing aids. While the Veteran was under headphone, the examiner was able to converse with him at 45 dB which the examiner noted was approximately 40 dB below admitted thresholds. The examiner diagnosed normal right and left ear hearing. The examiner also commented that the Veteran's hearing loss did not impact the ordinary conditions of his daily life, including his ability to work. For the reasons stated above, and discussed in detail, the medical record includes two VA audiometry findings which can here be used to rate the Veteran's service-connected bilateral hearing loss. These findings are dated in August 2008 and April 2012. In August 2008, the average puretone threshold for the right ear was 51 dB and 50 dB for the left ear; speech discrimination was 88 percent in the right ear and 84 percent in the left ear. In April 2012, the average puretone threshold for the right ear was 55 dB and 54 dB, and speech discrimination was 88 percent in the right ear and 84 percent in the left ear. Under 38 C.F.R. § 4.85, Table VI, while the April 2012 findings are slightly worse than the earlier results from August 2008, in both instances such hearing acuity is characterized as Level II hearing in the right ear and Level II in the left ear. Under 38 C.F.R. § 4.85, Table VII where there is Level II hearing acuity in the poorer ear and Level II hearing acuity in the better ear, a zero percent (or noncompensable) rating is to be assigned (under Diagnostic Code 6100). A layperson is competent to testify in regard to the onset and continuity of symptomatology. However, the rating schedule for hearing loss disability is a reasonable exercise of the Secretary's rulemaking authority. Martinak, supra. Whereas the Veteran' hearing loss disability has not been shown by medical or lay evidence to be worse than that measured during audiological evaluation, the lay evidence does not support a claim for a higher rating at any point during the period of the appeal. The RO applied the Rating Schedule accurately, and there is no schedular basis for a higher rating. Also, as noted, the record does not reveal that an unusual pattern of hearing warranting a rating under 38 C.F.R. § 4.86 is shown. The claim for an initial rating in excess of zero percent must be denied. Extraschedular Consideration The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The symptoms associated with the Veteran's bilateral hearing loss (i.e., difficulty hearing and understanding speech) are contemplated by the rating criteria and the medical evidence fails to show anything unique or unusual about the Veteran's bilateral hearing loss that would render the schedular criteria inadequate. The Veteran's main complaint is reduced hearing acuity, which is precisely what is contemplated in the rating assigned. The May 2013 VA examiner specifically noted the Veteran's complaints regarding the effect of hearing loss on occupational function and on daily activities. See Martinak, 21 Vet. App. at 447. As the available schedular criteria for this service-connected disability are adequate, referral for consideration of an extraschedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). ORDER An initial compensable evaluation for the service-connected hearing loss is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs