Citation Nr: 1323836 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 09-27 899 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from February 1965 to January 1967 and from February 1967 to March 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Board notes that the Veteran requested and was scheduled for a videoconference hearing before a Veterans Law Judge, but did not appear for the hearing. Accordingly, the Board considers the Veteran's request for a hearing to be withdrawn and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (d), (e) (2012). Historically, the Veteran was previously service-connected only for left ear hearing loss; this appeal arises from an increased rating claim for left ear hearing loss. However, during the course of the appeal, the Veteran was service-connected for right ear hearing loss, effective the date of his increased rating claim. Therefore, the Board has characterized the issue as set forth on the title page. FINDING OF FACT Audiometric testing reveals no worse than Level I hearing acuity in the Veteran's right ear and Level V hearing acuity in his left ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.85, 4.86 Diagnostic Code (DC) 6100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 & 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant was must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the veteran may submit (or ask the VA to obtain) that are relevant to establishing his or her entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular veteran's circumstances; that is, VA need not notify a veteran of the specific diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran was notified in a letter dated in January 2009 regarding the type of evidence necessary to establish his claim. He was instructed that to show entitlement to an increased evaluation for his service-connected disability, the evidence must show that the disability has gotten worse. The Veteran was notified of what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The letter also notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In addition, the letter informed the Veteran that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Regarding VA's duty to assist, VA obtained the Veteran's post-service medical records and also secured examinations in furtherance of his claim. Pertinent fee-based examinations were obtained in January 2009 and November 2012. 38 C.F.R. § 3.159(c)(4). The fee-based examinations obtained in this case are sufficient, as the examiners conducted complete examinations, recorded all findings considered relevant under the applicable law and regulations, and offered well supported opinions based on consideration of the full history of the disorder. The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issue adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). VA has no duty to inform or assist that was unmet. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder. II. Analysis The Veteran contends that he is entitled to a compensable rating for his bilateral hearing loss. See, e.g., December 2008 claim. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. 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. Where there is a question as to which of two ratings should be applied, the higher rating 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. The United States Court of Appeals for Veterans Claims (Court) has held that staged ratings are appropriate for initial rating and increased rating claims 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 (2007). As discussed in detail below, the Board concludes that a staged rating is not warranted. Disability evaluations for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Examinations are conducted using the controlled speech discrimination tests together with the results of the puretone audiometry test. See 38 C.F.R. § 4.85. The results are then analyzed using tables contained in 38 C.F.R. § 4.85, DC 6100. "Puretone threshold average,'' as used in Tables VI and VIa, is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. The appropriate rating is then determined by finding the intersection point for the two Roman numeral designations using Table VII. For exceptional patterns of hearing impairment, 38 C.F.R. § 4.86 provides as follows: (a) When the puretone 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. (b) When the puretone 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. A private evaluation dated in January 2009 shows that the Veteran had average pure tone hearing loss of 50 decibels in the right ear and 69 decibels in the left ear. Speech recognition scores were 96 percent in the right ear and 92 percent in the left ear. However, this record indicates that the speech recognition scores used monitored live voice (MLV) testing instead of the Maryland CNC word test. An exceptional pattern of left ear hearing loss was shown as the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) was more than 55 decibels. For the sake of argument, even if the speech recognition scores utilized the Maryland CNC word test, then pursuant to 38 C.F.R. 4.85, Table VI with regards to the Veteran's right ear, his pure tone threshold average and speech discrimination score received a numeric designation of Level I. Turning to the Veteran's left ear, as an exceptional pattern of hearing loss was shown, Table VIa results in a numeral higher than Table VI. Pursuant to 38 C.F.R. 4.85, Table VIa, the foregoing pure tone threshold average received a numeric designation of Level V. Applying the numeric designations to 38 C.F.R. 4.85, Table VII, the Veteran was entitled to a noncompensable rating under DC 6100. The average pure tone hearing loss on a fee-based audiological evaluation in January 2009 was 38 decibels in the right ear and 59 decibels in the left ear. Speech recognition scores using the Maryland CNC word lists were 100 percent in the right ear and 96 percent in the left ear. An exceptional pattern of hearing loss was not shown. The Veteran reported difficulty understanding anyone unless they repeated themselves. The examiner opined that the effect of the bilateral hearing loss on the Veteran's daily activity was that he had difficulty hearing and understanding speech. Pursuant to 38 C.F.R. 4.85, Table VI with regards to the Veteran's right ear, his pure tone threshold average and speech discrimination score received a numeric designation of Level I. Turning to the Veteran's left ear, the foregoing pure tone threshold average and speech discrimination score received a numeric designation of Level II. Applying the numeric designations to 38 C.F.R. 4.85, Table VII, the Veteran was entitled to a noncompensable rating under DC 6100. Therefore, a compensable rating is not warranted based on these results. A private evaluation dated in February 2009 shows that the Veteran had average pure tone hearing loss of 45 decibels in the right ear and 66 decibels in the left ear. Speech recognition scores were 94 percent in the right ear and 88 percent in the left ear. This record does show that the speech recognition scores used the Maryland CNC word test. An exceptional pattern of left ear hearing loss was shown as the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) was over 55 decibels. Pursuant to 38 C.F.R. 4.85, Table VI with regards to the Veteran's right ear, his pure tone threshold average and speech discrimination score received a numeric designation of Level I. Turning to the Veteran's left ear, as an exceptional pattern of hearing loss was shown, Table VIa results in a numeral higher than Table VI. Pursuant to 38 C.F.R. 4.85, Table VIa, the foregoing pure tone threshold average received a numeric designation of Level V. Applying the numeric designations to 38 C.F.R. 4.85, Table VII, the Veteran was entitled to a noncompensable rating under DC 6100. In his July 2009 substantive appeal, the Veteran reported problems hearing out of his left ear. He indicated that he almost had to read lips or stand or position himself with his right ear closest to those who were speaking. He thought that as he got older, it was getting worse. His wife had to repeat herself sometimes when talking to him. The average pure tone hearing loss on a fee-based audiological evaluation in November 2012 was 34 decibels in the right ear and 58 decibels in the left ear. Speech recognition scores using the Maryland CNC word lists were 96 percent in the right ear and 88 percent in the left ear. An exceptional pattern of hearing loss was not shown. Pursuant to 38 C.F.R. 4.85, Table VI with regards to the Veteran's right ear, his pure tone threshold average and speech discrimination score received a numeric designation of Level I. Turning to the Veteran's left ear, the foregoing pure tone threshold average and speech discrimination score received a numeric designation of Level III. Applying the numeric designations to 38 C.F.R. 4.85, Table VII, the Veteran was entitled to a noncompensable rating under DC 6100. Therefore, a compensable rating is not warranted based on these results. Here, the Veteran has been awarded a noncompensable rating throughout the pendency of this appeal. For the reasons set forth above, the evidence does not show that he is entitled to a compensable rating for bilateral hearing loss at any time during the pendency of this appeal based on the standard rating criteria. 38 C.F.R. § 4.85, DC 6100. Therefore, his initial rating claim is denied. The above determination is based upon consideration of applicable rating provisions. In Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (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 loss disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. In this case, the Veteran reported functional impairment in that he had difficulty understanding anyone unless they repeated themselves at the January 2009 examination. Additionally, the examiner opined that the effect of the bilateral hearing loss on the Veteran's daily activity was that he had difficulty hearing and understanding speech. Also, in his July 2009 substantive appeal, the Veteran discussed the functional effects of his bilateral hearing loss disability. As the January 2009 examination described the functional effects of the Veteran's bilateral hearing loss disability, as the Veteran reported his functional effects in July 2009, and as the Veteran has not demonstrated any prejudice caused by a deficiency in either examination, the Board reiterates that the evidence does not support a finding of a compensable rating at any time since the award of service connection. The evidence does not show that the Veteran's bilateral hearing loss has resulted in marked interference with employment or activities of daily life. Accordingly, and based on this evidentiary posture, the Board concludes that the totality of the evidence of record has not shown that the Veteran's bilateral hearing loss warrants a compensable schedular rating at any time during this appeal. The Board finds, therefore, that the evidence of record does not support the criteria required for a compensable schedular rating at any time during this appeal. The Board also finds that evidence does not show an exceptional or unusual disability picture as would render impractical the application of the regular schedular rating standards. See 38 C.F.R. § 3.321 (2012). The current evidence of record does not demonstrate that the bilateral hearing loss has resulted in frequent periods of hospitalization or in marked interference with employment. Id. In this regard, the Board notes that it is undisputed that the Veteran's bilateral hearing loss has an adverse effect on employability, but it bears emphasis that the schedular rating criteria are designed to take such factors into account. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "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." 38 C.F.R. § 4.1 (2012). In this case, the very problems reported by the Veteran are specifically contemplated by the criteria discussed above. 38 C.F.R. § 4.10. Therefore, given the lack of evidence showing unusual disability not contemplated by the rating schedule, the Board concludes that a remand to the RO for referral of this issue to the VA Central Office for consideration of an extraschedular evaluation is not warranted. Although the Veteran has submitted evidence of a medical disability, and a made claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable, as a result of his service-connected bilateral hearing loss. The issue of entitlement to a total disability rating based on individual unemployability due to this service-connected disability has not, therefore, been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. ____________________________________________ M.C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs