Citation Nr: 1324782 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 10-07 020 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased (compensable) rating for bilateral hearing loss, evaluated as noncompensable prior to July 26, 2012; and 10 percent disabling beginning July 26, 2012. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The Veteran had active military service in the United States Army from January 1968 to February 1971. This matter comes before the Board of Veterans' Appeals, hereinafter the Board, from a rating decision of September 2009 of the Waco, Texas, Regional Office (RO), of the Department of Veterans Affairs (VA). In that action, the RO denied the Veteran's claim for entitlement to a compensable rating for bilateral hearing loss. In October 2012, the RO increased the rating for the hearing loss to 10 percent, effective July 26, 2012. In November 2012, the Veteran submitted a VA Form 21-4138, Statement in Support of Claim, in which he questioned the effective date for the compensable rating. The issue on appeal encompasses the entire period for up to one year prior to the date of his claim for increase. Hart v. Mansfield, 21 Vet. App. 506 (2007). The RO had issued a statement of the case in August 2008, with regard to the Veteran's disagreement with the initial rating for bilateral haring loss. The RO closed the appeal after the Veteran did not submit a timely response to a statement of the case. No further communication or evidence was received until June 2009, when his representative submitted a claim for increase. FINDINGS OF FACT 1. The Veteran had, at most, Level I hearing loss in the left ear and right ear prior to July 26, 2012. 2. The Veteran has had, at most, Level V hearing loss in the right ear and Level III hearing loss in the left ear since July 25, 2012. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss prior to July 26, 2012, have not been met. 38 U.S.C.A. § 1155 (West 2012); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.85, Diagnostic Code 6100 (2012). 2. The criteria for an evaluation in excess of 10 percent for bilateral hearing loss after July 25, 2012, have not been met. 38 U.S.C.A. §§ 1155; 38 C.F.R. §§ 3.321, 4.1-4.14, 4.85, 4.104, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 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, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper 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 in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to the claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). Adequate VCAA notice in an increased rating claim requires that the claimant be told that to substantiate a claim the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; that should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008); vacated and remanded in part Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VA sent the Veteran notice required by the VCAA in July 2009. This letter contained all required VCAA notice. VA also fulfilled its duty to assist. VA obtained the Veteran's available service and post-service treatment records, including requesting any treatment records from the facilities the Veteran had been treated there at, and those other records that the VA was made aware thereof. Given the foregoing, the Board finds that the RO has complied with the duty to procure the necessary medical and other records. Additionally, VA has provided adequate medical examinations. The record reflects that over the course of this appeal, the Veteran has undergone two VA examinations with respect to his bilateral hearing loss. The reports include all findings needed to rate the hearing loss disability. The Veteran has submitted a private audiology examination, which served as the basis for the grant of the 10 percent rating. Ordinarily a new VA examination is required where there is evidence of worsening since the last examination. In this case the private examination has been accepted as sufficient for rating purposes and there is no need for an additional VA examination. See 38 C.F.R. § 3.326(b) (2012) (providing that VA may accept a private examination report for purposes of rating a claim). In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The VA examinations did include opinions as to the severity of the hearing loss, and thereby indicated its functional effects. The private examiner provided more detail as to functional effects. In Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the United States Court of Appeals for Veterans Claims, hereinafter the Court, held that audiometric testing in sound controlled rooms are adequate testing grounds for rating purposes. Thus, no additional action in this regard is warranted. See Martinak (noting that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination). At this point there is no additional notice or assistance that would be reasonably likely to assist the Veteran in substantiating his claim. II. Laws, Regulations, and Discussion The Veteran has come before the VA asking that his bilateral hearing loss condition be assigned a disability rating in excess of 0 and 10 percent. He believes that the symptoms and manifestations produced by this condition entitle him to a higher rating. Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R., Part 4 (2012). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 (2012) requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 (2012) requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.7 (2012) provides that, 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. The Court has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 506 (2007). An evaluation of the level of disability present also includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.11 (2012). The record reflects that the Veteran underwent a VA Audiological Examination at the Dallas VA Medical Center (VAMC) in July 2009. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 60 65 LEFT 5 15 10 35 65 Speech audiometry revealed speech recognition ability of 96 percent in both ears. The average pure tone thresholds, in decibels, for the right ear was 40 and for the left ear 31. The record reflects that another VA Audiological Examination was performed in June 2011 at the Dallas VA Medical Center (VAMC). On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 30 60 65 LEFT 20 30 20 40 65 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear. The average pure tone thresholds, in decibels, for the right ear was 46 and for the left ear 39. A private audiological examination was performed in July 2012. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT - 60 55 75 70 LEFT - 55 50 50 65 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 88 percent in the left ear. The average pure tone thresholds, in decibels, for the right ear was 65 and for the left ear 55. Bilateral hearing loss was once again diagnosed. Included in the claims file is also a private audiological examination that was accomplished in October 2009. That examination produced a diagnosis of mild to moderate hearing loss in both ears. On the report, there are two "discrimination" scores of 100 percent. However, there is no indication that the speech discrimination testing was administered using the Maryland CNC word list, which is required when evaluating hearing loss claims for VA. Consequently, the October 2009 private results will not be considered herein. The Board would note that none of the examination reports, either VA or private, have suggested or indicated that the Veteran's hearing loss has impacted his current levels of functioning. To evaluate the degree of disability from defective hearing, the VA Schedule for Rating Disabilities (Rating Schedule) establishes eleven auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.87, Diagnostic Code 6100; Table VI (2012). See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The horizontal rows represent the ear having the better hearing, while the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e) (2012). Table VII was amended in that hearing loss is now rated under a single code, that of Diagnostic Code 6100, regardless of the percentage of disability. See 64 Fed. Reg. 25204 (May 11, 1999). Applying the above test results to Table VI of the Rating Schedule, the Veteran's hearing loss results in the following designations: Date of Test Results Right Ear Left Ear Number Percentage Designation Using Table VII July 2009 Level I Level I 0 percentage June 2011 Level I Level I 0 percentage July 2012 Level III Level II 0 percentage 38 C.F.R. § 4.85, Table VII (2012). The regulations also provide for evaluating claimants with certain patterns of hearing impairment that cannot always be accurately assessed under 38 C.F.R. § 4.85 (2012) because the speech discrimination test may not reflect the severity of communicative functioning that these service members experience. See 64 Fed. Reg. 25203 (May 11, 1999). The provision applicable to this case, 38 C.F.R. § 4.86(a), indicates that if pure tone thresholds in any four frequencies of 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more, an evaluation can be based either on Table VI or Table VIa, whichever results in a higher evaluation. See 64 Fed. Reg. 25209 (May 11, 1999). This provision corrects for the fact that with a 55-decibel threshold level (the level at which speech becomes essentially inaudible) the high level of amplification needed to attempt to conduct a speech discrimination test would be painful to most people, and speech discrimination tests may therefore not be possible or reliable. Id. Each ear will be evaluated separately. In this instance, the Veteran does not have four frequencies in either ear measured at 55 decibels or greater with respect to the examinations prior to July 26, 2012. However, the private examination of July 26, 2012, does show hearing loss at 55 decibels or more in the pertinent frequencies in the right ear. In applying the results from that examination, and using Table VIA and Table VII, the results are Level V for the right ear and Level III for the left ear, resulting in a 10 percent disability rating. The second provision, that of 38 C.F.R. § 4.86(b) (2012), indicates that when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa, whichever results in the higher numeral, and that numeral will then be elevated to the next higher Roman numeral. Id. This provision compensates for a pattern of hearing impairment that is an extreme handicap in the presence of any environmental noise, and a speech discrimination test conducted in a quiet room with amplification of sound does not always reflect the extent of impairment experienced in the ordinary environment. Id. This provision does not apply because the Veteran has not been measured to have hearing loss of 30 decibels or less at 1000 Hertz along with 70 decibels or more at 2000 Hertz. The Veteran has argued that his hearing loss should be assigned an evaluation of 10 percent or greater prior to July 26, 2012, but the private and VA audiology tests prior to that date did not show the requisite hearing loss for a 10 percent rating. The most probative evidence is the audiological testing that was completed by VA and the private health care provider, as they provide measurable information concerning whether the Veteran is entitled to a higher evaluation pursuant to the Rating Schedule. The Board is bound in its decisions by applicable provisions of law and regulations. See 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 19.5 (2012). In addition, the Court has explained that the assignment of disability ratings for hearing impairment is derived from a mechanical application of the Rating Schedule to numeric designations assigned after audiometric evaluations are rendered. Lendenmann v Principi, 3 Vet. App. 345, 349 (1992). In this case, the mandated mechanical application of the Rating Schedule to the numeric designations assigned based on the reported audiometric evaluation does not warrant an evaluation more than previously assigned by the RO before or after July 26, 2012. Accordingly, the Board concludes that a compensable evaluation prior to July 26, 2012, is not supported by the record; and an evaluation in excess of 10 percent after July 25, 2012, is not supported by the record and an increased evaluation is not warranted for any period of time that is covered by this claim. See Hart, supra. In reaching this decision, the Veteran's contentions regarding the severity of his hearing loss have been considered. There is no reason to doubt the credibility of the Veteran with respect to his hearing loss disability. The findings on the multiple examinations of record are consistent with his assertions that he has difficulty hearing. The objective findings on examination, however, do not allow for the assignment of a compensable evaluation prior to July 26, 2012, and an evaluation in excess of 10 percent after July 25, 2012, in this case. As stated above, the Board is bound by the mechanical formula provided by regulation for the assignment of ratings for service-connected hearing loss, and is without authority to grant a higher rating in this case. Although unfortunate, the numeric designations in this case correlate to no higher than the disability ratings previously assigned. In determining whether a higher schedular rating is warranted for a disease or disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Although the Board sympathizes with the Veteran's difficulties due to his hearing loss, once again, the Board is constrained to abide by VA regulations. In light of the above, the Board finds that the evidence is against his claim. Additionally, the Board recognizes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based upon individual unemployability due to service-connected disabilities is part of an increased rating claim when such claim is expressly raised by the veteran or reasonably raised by the record. However, in this instance, the Veteran has not reported unemployability and there is no other evidence that his service connected disabilities have rendered him unemployable. Thus, any further consideration of the Veteran's claim under Rice is not warranted at this time. See Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009. III. Extraschedular Evaluation The Board has also considered whether the Veteran is entitled to an extraschedular rating. 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 on 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 scheduler 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 scheduler 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 first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant'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 an 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 evaluation. 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 evaluation for the service-connected bilateral hearing loss is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disorder with the established criteria found in the rating schedule for those conditions shows that the rating criteria considers loss of hearing as well as functionality. The Board further observes that, even if the available schedular evaluation is inadequate, the Veteran does not exhibit other related factors outside of the "governing norms." The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) (2012) is not warranted. ORDER 1. Entitlement to an increased (compensable) rating for bilateral hearing loss prior to July 26, 2012, is denied. 2. Entitlement to an increased rating, in excess of 10 percent, for bilateral hearing loss after July 25, 2012, is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs