Citation Nr: 1324828 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 07-17 485 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether referral for consideration of entitlement to an initial compensable disability rating for bilateral hearing loss on an extraschedular basis is warranted. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from May 1979 to May 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In a February 2004 rating decision, the Veteran was granted service connection for left ear hearing loss. A noncompensable evaluation was assigned, effective January 9, 2003. In a July 2007 rating decision, the RO granted service connection for right ear hearing loss. A noncompensable evaluation was assigned, effective July 11, 2006. In June 2009, the Board denied entitlement to a compensable disability rating for the Veteran's bilateral hearing loss on a schedular basis, but remanded the issue of whether referral for consideration of an extraschedular rating was warranted. As discussed below, the Board remanded the case again in August 2011, so that the Veteran could be afforded a VA audiology examination. The AMC provided a supplemental statement of the case (SSOC) in October 2012. The case was remanded a third time in January 2013 for additional development and adjudicative action. The AMC provided a supplemental statement of the case in February 2013. After completing the additional development, the AMC continued to deny the claim (as reflected in a March 2013 SSOC), and returned this matter to the Board for further appellate consideration. The Board has reviewed both the Veteran's physical claims file and the record maintained in the Virtual VA paperless claims processing system to ensure complete consideration of all the evidence. To that end, the Board notes that following the March 2013 Supplemental Statement of the Case (SSOC), private medical records were uploaded to the Veteran's electronic Virtual VA folder in May 2013. Under applicable law, the Board may not consider newly-submitted evidence in the first instance unless the claimant has waived initial consideration by the appropriate agency of original jurisdiction (here, the RO). See 38 C.F.R. §§ 19.37, 20.1304 (2012). Review of the record reveals that the Veteran was not issued a SSOC after these medical records were added to Virtual VA. Although no waiver was submitted along with this evidence, the Board notes that these medical records pertain to treatment for nonservice-connected prostate cancer. In other words, the records are not relevant or material to the outcome of the issue currently on appeal and do not preclude a decision by the Board at this time. FINDING OF FACT The Veteran's service-connected bilateral hearing loss is contemplated by the applicable rating criteria and does not present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. CONCLUSION OF LAW The criteria for an extraschedular evaluation for the service-connected bilateral hearing loss have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.321(b)(1), 4.71a, Diagnostic Code (DC) 6100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist Before addressing the merits of the service connection issue on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in October 2006 of VA's duty to assist him in substantiating his claim under the VCAA, and the effect of this duty upon his claim. This letter also informed him of how disability ratings and effective dates are assigned. See Dingess, 19 Vet. App. at 484. Because the letter addressed all notice elements and predated the initial adjudications by the AOJ/RO in January 2007 and July 2007, nothing more was required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA has also satisfied its duty to assist the Veteran in the development of the claim adjudicated herein. His in-service and pertinent post-service treatment reports are of record. The Veteran submitted personal statements and representative argument. He has not indicated that any additional pertinent evidence exists, and there is no indication that any such evidence exists. The Board has reviewed both the Veteran's physical claims file and the record maintained on the Virtual VA electronic file system. In addition, relevant VA examinations were obtained in August 2010, September 2011, September 2012, and March 2013. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The March 2013 examination is more than adequate to the extent that it provides the necessary testing data to determine the current severity of the Veteran's service connected hearing loss to allow for effective evaluation of this disability, including a thorough discussion of the effect of his symptoms on his functioning. With respect to claims for service connection for hearing loss in general, a Compensation and Pension (C&P) hearing examination worksheet was revised to include a discussion of the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dept. of Veterans Affairs Veterans, Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2012). The United States Court of Appeals for Veterans Claims (Court) held that, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Here the March 2013 VA audiologist elicited information from the Veteran related to the functional effects caused by his bilateral hearing loss. He/she specifically noted the Veteran's specific complaint as to the effect of his hearing loss on his occupation as an ROTC instructor. That being said, in Martinak, the Court noted 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. Neither the Veteran nor his representative has alleged any prejudice caused by a deficiency in the examination here. Thus, there is adequate medical evidence of record to make a determination in this case. For these reasons, there is no basis to conclude that the VA medical opinion is inadequate, or that a remand for a new examination is required. Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Thus, the Board finds that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. No useful purpose would be served in remanding this matter for yet more development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); & Quartuccio v. Principi, supra. Law and Analysis The Veteran contends that his service-connected hearing loss is more disabling than is reflected in the current noncompensable disability rating. He has indicated that he had increased difficulty in "all situations" due to his hearing loss. As discussed above, and in the January 2013 Board decision, the Board has already adjudicated the matter of entitlement to a compensable disability rating for hearing loss on a schedular basis, and determined that no higher rating was warranted. See June 2009 Board Decision. Thus the only matter remaining for consideration is whether a compensable disability rating is warranted on an extra-schedular basis. Hearing loss is evaluated under DC 6100, which sets out the criteria for evaluating hearing impairment using puretone threshold averages and speech discrimination scores. Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85. See Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Audiometric results are matched on Table VI to find the numeric designation. Then, the designations are matched with Table VII to find the percentage evaluation to be assigned for the hearing impairment. To evaluate the degree of disability for service-connected hearing loss, the Rating Schedule establishes 11 auditory acuity levels, designated from Level I for essentially normal acuity, through Level XI for profound deafness. 38 C.F.R. § 4.85. The provisions of section 4.86 address exceptional patterns of hearing loss which are identified when each of the puretone thresholds at 1000, 2000, 3000, and 4000 hertz (Hz) is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz. 38 C.F.R. § 4.86. Ordinarily, the VA Rating 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). Pursuant to 38 C.F.R. § 3.321(b)(1), an extraschedular rating is in order when there exists such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. See Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the Veteran or reasonably raised by the record). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the 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. Floyd v. Brown, 9 Vet. App. 88, 94, 115-116 (1996). When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In the current appeal, the record contains audiolgoical evaluations dated in 2006 and 2008, which have been summarized in the prior September 2009 Board decision. [So, there is no need to recite them in detail in this decision.] Since then the Veteran has undergone additional VA examinations during the pendency of his appeal dated in August 2010, September 2011, September 2012, and March 2013, which in general show the criteria for a compensable disability rating were not met. During audiological examination in August 2010, puretone thresholds for the right ear were 20, 35, 45, 45, and 55 decibels at 500, 1000, 2000, 3000, and 4000 Hz, respectively, and for the left ear at the same frequencies were 25, 45, 55, 55, and 60. The average puretone threshold was 45 for the right ear and 54 for the left ear. Speech recognition scores, per Maryland CNC, were 100 percent for both ears. The diagnosis was sensorineural hearing loss, bilaterally. These VA audiometric findings reflect a numeric designation of Level I auditory acuity in both ears. See 38 C.F.R. § 4.85, Table VI. The point of intersection on Table VII reflects a level of hearing loss consistent with a noncompensable evaluation. See 38 C.F.R. § 4.85. The audiological results do not satisfy the criteria for a compensable rating due to an exceptional hearing loss pattern. 38 C.F.R. § 4.86. In an April 2011 deferred rating decision the AMC/RO noted that the case was not yet ready due to August 2010 examination report's lack of a description of the effects on the Veteran's occupation functioning and daily activities. The Veteran was apparently scheduled for an additional VA examination in May 2011, but failed to report. In a May 2011 statement, through his representative, the Veteran indicated that he had been unable to attend the VA examination because he had to work. He requested that the examination be rescheduled. Pursuant to an August 2011 Board remand, the Veteran underwent a VA examination in September 2011. However, the audiologist concluded that the Veteran's audiologic examination results were invalid and recommended that they not be used for rating purposes. Specifically, she noted that the Veteran's volunteered pure-tone thresholds and pure-tone averages were elevated compared to speech recognition thresholds bilaterally, indicating poor test validity. The audiologist also noted that the Veteran was re-instructed and that transducers were changed from headphones to inserts and volunteered thresholds still did not adequately change. Therefore, she concluded that no opinion could be provided as to the effects of the Veteran's hearing loss on occupational functioning without resorting to speculation. Due to the invalid test results, the Veteran was afforded another VA audiology examination in September 2012. However, the audiologist again found that the Veteran's volunteered pure-tone thresholds and pure-tone averages were elevated compared to the speech recognition thresholds bilaterally, indicating poor test validity; and although the Veteran was re-instructed and transducers were changed from headphones to inserts, volunteered thresholds still did not adequately change. The examiner again concluded that the test results were invalid and recommended that they not be used for rating purposes. As such, he did not provide an opinion as to the effects of the Veteran's hearing loss on occupational functioning. When examined by VA in March 2013, the Veteran reported only that as an ROTC instructor he sometimes had difficulty hearing students when they spoke to him from the back of the classroom. On audiometric testing, puretone thresholds for his right ear were 25, 30, 25, 30, and 30, decibels at 500, 1000, 2000, 3000, and 4000 Hz, respectively, and for the left ear at the same frequencies were 30, 35, 35, 40 and 45, respectively. The results of the audiogram show an average puretone threshold of 29 decibels in his right ear and 39 decibels in his left ear. Speech discrimination ability was 100 percent in both ears. The diagnosis was mild sensorineural hearing loss in the right ear and a mild to moderate sensorineural hearing loss in the left ear. These VA audiometric findings reflect a numeric designation of Level I auditory acuity in both ears. See 38 C.F.R. § 4.85, Table VI. The point of intersection on Table VII reflects a level of hearing loss consistent with a noncompensable rating. See 38 C.F.R. § 4.85. The audiological results do not satisfy the criteria for a higher rating due to an exceptional hearing loss pattern. 38 C.F.R. § 4.86. The audiologist noted that with this degree of hearing loss the Veteran may experience some difficulty understanding soft speech in the presence of background/competing noise. She also noted that VA had provided the Veteran with amplification appropriate for his hearing loss and that he should not have any adverse complications to his functional or daily activities as a result of his current hearing thresholds, especially when wearing his hearing aids. With amplification and reasonable accommodations as specified in the Americans with Disabilities Act, it was the examiner's opinion that this hearing loss alone should not significantly affect vocational potential or limit participation in most work activities. Employment would be more than feasible in a loosely supervised situation. The Board finds that there is no basis for referral for consideration of an extra-schedular rating. See 38 C.F.R. § 3.321(b)(1). In this case, the schedular evaluations for the Veteran's hearing loss are not inadequate. He has not identified any factors which may be considered to be exceptional or unusual so as to render impractical the application of the regular schedular standards, and the Board has been similarly unsuccessful. As discussed above, there are higher ratings available for the Veteran's service-connected hearing loss, but the required manifestations have not been shown in this case. Moreover, no other factors (such as frequent hospitalizations, unusual clinical presentation, or any other factors, which take the hearing loss disability outside the usual rating criteria) have been identified, and none is evident in the record on appeal. Rather, it appears that the Veteran's arguments have focused squarely on whether his hearing loss causes marked interference with his employment. Although, the above evidence unquestionably shows that his service-connected hearing loss has had an adverse impact on his employability, this alone is not sufficient to warrant the assignment of an extraschedular rating, which is premised on an exceptional or unusual disability picture. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified 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." Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) and Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. Thus, in order for an extraschedular rating to be assigned there must be something which takes the case out of the norm. The Veteran does not argue, and the evidence does not suggest, that the bilateral hearing loss manifests in symptoms other than diminished hearing acuity, particularly in background noise. Also, his complaints of difficulty hearing his students from the back of the classroom have been acknowledged and considered by the March 2013 examiner. Moreover, according to the March 2013 VA audiologist, the Veteran's hearing loss does impact the ordinary conditions of daily life, including his ability to work. However she also noted that with amplification and reasonable accommodations the hearing loss alone would not significantly affect vocational potential or limit participation in most work activities. In fact, the Board noted that the Veteran is still able to work and did not contend at the examination that he was unable to work due to his hearing loss. The Board is indeed sympathetic to the difficulties that the Veteran's hearing loss may cause him in his employment, but he has not indicated or suggested that his hearing loss has caused him to miss any time from work or receive a less-than-satisfactory performance evaluation or appraisal. Neither is there any indication of demotion or special accommodation having to be made to compensate for his hearing loss. In other words, the evidence does not support the proposition that the Veteran's service-connected hearing loss disability presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards to warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). Thus, referral of this issue to the appropriate VA officials for consideration of an extraschedular evaluation is not warranted. See Bagwell v. Brown, 9Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER An extraschedular rating for the service-connected bilateral hearing loss is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs