Citation Nr: 1325177 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 12-05 201 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to a higher (compensable) initial disability rating (evaluation) for service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from January 1955 to January 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction over this claim is currently with the RO in Providence, Rhode Island. In June 2013, the Veteran testified in a Videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the Veteran's file in "Virtual VA." In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the file on the Virtual VA system to ensure a complete assessment of the evidence. During the June 2013 Board Videoconference hearing, to assist the Veteran, the undersigned asked questions to help direct the Veteran's testimony to more adequately portray the Veteran's hearing loss disability, to include the impact of the disability on the Veteran's ability to work. These actions fulfilled the duties under 38 C.F.R. § 3.103 (2012). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Board has considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU), as recognized in Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised by the Veteran or the evidence in this case, but finds that a TDIU claim has not been raised. In this case, the Veteran has not reported or contended that he is unable to work specifically due to his service-connected hearing loss disability and, while the May 2011 VA examiner found that the Veteran's hearing loss had a significant effect on occupation, the examiner also concluded that physical and sedentary employment should be possible. Indeed, during the Board hearing before the undersigned, the Veteran testified that he sold his business and retired from full-time employment in 2002 and continues to work part-time; thus, the record demonstrates that the Veteran has not claimed to be unemployable due to his bilateral hearing loss. For this reason, a TDIU claim is not raised by the record in this case. 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 period on appeal, the Veteran's bilateral hearing loss has been manifested by no more than level II hearing in the right ear and level II hearing in the left ear. CONCLUSION OF LAW The criteria for a compensable initial rating for bilateral hearing loss have not been met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4.14, 4.85-4.87, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002);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 or her representative 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). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claims prior to initial adjudication. A November 2011 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. The November 2011 notice letter also informed the Veteran as to how disability ratings and effective dates are assigned. Concerning the appeal for a higher initial rating, because it is an appeal that arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for bilateral hearing loss, no additional notice is required. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the United States Court of Appeals for Veterans Claims (Court) have held that, once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App.112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement). With regard to the duty to assist, the Veteran's service treatment records and pertinent post-service treatment records, including private treatment reports, have been secured. The RO arranged for VA audiometric examinations in May 2011 and October 2012. These examinations, taken together, are found to be adequate for rating purposes of the issue. The examiners reviewed the Veteran's medical history and complaints, made clinical observations, and rendered opinions regarding the severity of the disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). As such, VA has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal. Mayfield at 1328. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claim. Disability Rating Criteria for Bilateral Hearing Loss Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). Ratings for service-connected hearing loss range from noncompensable (0 percent) to 100 percent for hearing loss. These evaluations are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Diagnostic Code 6100 provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. The hearing impairment is established by a state licensed audiologist including a controlled speech discrimination and the puretone threshold average, which is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. Under 38 C.F.R. § 4.86(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 IV or Table VIa, whichever results in the higher numeral. Each ear is to be evaluated separately. See 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) provide that 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 evaluated to the next higher Roman numeral. See 38 C.F.R. § 4.86(b). In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that, in addition to providing objective test results, a VA audiological examination report must address the functional effects caused by a hearing disability because an extraschedular evaluation under 38 C.F.R. § 3.321(b) "does not rely exclusively on objective test results to determine whether a referral for an extraschedular rating is warranted." The Court also noted that VA's policy requiring VA audiologists to describe the effect of a hearing disability on occupational functioning and daily activities facilitates extraschedular determinations by requiring VA audiologists to provide such information. Martinak, 21 Vet. App. at 455. In rendering a decision on appeal the Board must also 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board has reviewed all of the evidence in the Veteran's claims file with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Bilateral Hearing Loss Initial Rating Analysis The Veteran asserts that a higher initial disability rating than 0 percent is warranted for the service-connected bilateral hearing loss. During the June 2013 Board Videoconference hearing before the undersigned Veterans Law Judge, the Veteran testified that, while he has hearing aids that improve his hearing ability, he is less social as a result to the hearing loss disability because it is difficult for him to hear others in such settings. Hearing transcript at 3. The relevant evidence for this claim consists of the Veteran's lay statements, to include his testimony during the June 2013 Board hearing, the VA examination reports dated in May 2011 and October 2012, and private treatment reports. Private treatment reports note the Veteran's audiology treatment, but do not include detailed information relevant to the bilateral hearing disability rating analysis under the applicable rating criteria. The VA examination reports do include more probative evidence for rating hearing loss of audiometric test scores and speech recognition test scores. In this regard, however, the private audiology records are briefly addressed below. For the entire period on appeal, the Board finds that the weight of the competent and probative lay and medical evidence demonstrates that a compensable initial disability rating for the service-connected bilateral hearing loss is not warranted for any period. The Veteran underwent a VA audiology evaluation in May 2011. At that time, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 15 30 60 65 43 LEFT 10 20 65 75 43 Speech audiometry in May 2011 revealed speech recognition ability of 92 percent in the right ear and 90 in the left ear. The pertinent diagnoses were mild to profound sensorineural hearing loss in the right ear at the 2000-8000 Hz levels, and moderately severe to profound sensorineural hearing loss at the 3000-8000 Hz levels. The Veteran also reported decreased hearing for both ears with difficulty hearing his wife and grandchildren. Based upon the results of the May 2011 VA audiology examination, a Roman numeral I is designated for the right ear from Table VI of 38 C.F.R. § 4.85 and a Roman numeral II is designated for the left ear. Intersecting the numeric designations to the applicable row and column for the right and left ear, a noncompensable evaluation is derived from Table VII of 38 C.F.R. § 4.85. The intersection point for these categories under Table VII shows that the hearing loss does not exceed the levels contemplated for a noncompensable (0 percent) schedular rating. Thus, this audiometric evidence does not support a finding of a compensable evaluation. The Veteran was afforded another VA audiology evaluation in October 2012. At that time, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 15 25 55 75 43 LEFT 10 25 70 75 45 Speech audiometry revealed speech recognition ability of 94 percent bilaterally. The pertinent diagnosis was bilateral, sensorineural hearing loss. The Veteran also reported that he has difficulty hearing his wife and hearing the television, but that he hears better if he cups his hand to his ear. Based upon the results of the October 2012 VA audiology examination, a Roman numeral I is designated for the right ear from Table VI of 38 C.F.R. § 4.85 and a Roman numeral I is designated for the left ear. Intersecting the numeric designations to the applicable row and column for the right and left ear, a noncompensable evaluation is derived from Table VII of 38 C.F.R. § 4.85. The intersection point for these categories under Table VII shows that the hearing loss does not exceed the levels contemplated for a noncompensable (0 percent) schedular rating; thus, the audiometric evidence of record is against a finding of a compensable rating for any period. As discussed above, the Veteran underwent private audiometric testing in September 2003, July 2004, and October 2010. The September 2003 and July 2004 private audiometric results do not include the puretone threshold, in decibels, of the 3000 Hz level; therefore, complete audiometric data, including puretone averages, is not available. Nevertheless, the Board has considered the audiometric test scores in the remaining puretone thresholds that are available to see if, in the context of all the other findings in this case, a higher rating is warranted. While the private audiometric evaluations in these reports do not include the puretone thresholds in numerical format, but are reported in graphical representation, the Board is able to interpret these graphical representations of audiometric data and convert it to numerical data in its role as a fact finder as long as the graphical representations are clear. See Kelly v. Brown, 7 Vet. App. 471, 474 (1995) (noting that, because interpreting results from an audiometric graph involves fact finding, the Court is precluded from engaging in such fact finding in the first instance, and remanding in part because the Board did not discuss the results of the private audiometric testing); see also Savage v. Shinseki, 24 Vet. App. 249 (2011) (noting the Board may interpret results from a private audiometric graph, if it felt it had the expertise, and holding that the Board may not ignore such private audiometric test results that are of record). In addition, it is unclear whether the documented speech discrimination percentages in September 2003, July 2004, and October 2010 were obtained using Maryland CNC testing as required by regulation. See 38 C.F.R. § 4.85(a). However, the Board has considered if, arguendo, the speech discrimination percentages were derived using Maryland CNC testing, to see if the results would warrant a compensable rating and, if so, would also warrant further assistance to determine from the private audiology examiners which type of speech discrimination testing was used. However, the Board finds that even the lowest speech discrimination results (84 percent in the right ear with 88 percent in the left ear) would not warrant a compensable disability rating. At the private audiology examination in September 2003, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 20 30 NT 70 LEFT 10 24 NT 65 Speech recognition scores in September 2003 were measured at 84 percent in the right ear and 88 percent in the left ear, although it is unclear whether the documented speech discrimination percentages were obtained using Maryland CNC testing as required by regulation. See 38 C.F.R. § 4.85(a). At the private audiology examination in July 2004, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 20 22 NT 64 LEFT 17 17 NT 53 Speech recognition scores in July 2004 were measured at 88 percent in the right ear and 88 percent in the left ear, although it is unclear whether the documented speech discrimination percentages were obtained using Maryland CNC testing as required by regulation. See 38 C.F.R. § 4.85(a). The October 2010 private audiometric results include the appropriate puretone thresholds at the 1000, 2000, 3000, and 4000 Hz levels and were recorded as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 15 30 60 70 44 LEFT 10 20 65 70 41 Here, however, it is unclear whether the documented speech discrimination percentages (measured at 88 percent in the right ear and 84 percent in the left ear) were obtained using Maryland CNC testing as required by regulation and these audiometric results are also not adequate for VA compensation and rating purposes. See 38 C.F.R. § 4.85(a). Even if the Board were to assume, arguendo, that the October 2010 private audiological evaluation included speech discrimination percentages using Maryland CNC testing, these results would not warrant a compensable disability rating as a Roman numeral II is designated for the right ear from Table VI of 38 C.F.R. § 4.85 and a Roman numeral II is designated for the left ear. The intersection point for these categories under Table VII shows that the hearing loss does not exceed the levels contemplated for a noncompensable (0 percent) schedular rating. The provisions of 38 C.F.R. § 4.86(a) (exceptional patterns of hearing impairment) do not apply during this appeal period as the audiometric results of the VA audiometric evaluations did not show puretone thresholds of loss of 55 decibels or greater in the four relevant frequencies for the Veteran's ears. The provisions of 38 C.F.R. § 4.86(b) are also not applicable as both ears are not shown to manifest 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hz. In this case, the Veteran has reported the effects of his hearing loss on his daily functioning. Specifically, he has stated that he has difficulty hearing his wife, his grandchildren, and the television. He testified that this has resulted in less social functioning. See hearing transcript at 3. These descriptions of the Veteran's service-connected hearing loss must be considered in conjunction with the clinical evidence of record, as well as the pertinent rating criteria. VA examination reports of record include thorough hearing examinations and testing results that were consistent over the entire appeal period (to include the October 2010 private audiology results). While the Veteran has reported difficulty with hearing others and the television, which has impacted social functioning, the percentage bilaterally of speech recognition reflects high speech discrimination ability. Neither the Veteran nor his representative has set forth any allegation that the hearing examinations are deficient in evaluating his bilateral hearing loss. Despite the Veteran's contention that his hearing loss is "profound enough" to warrant a compensable evaluation (see March 2012 substantive appeal), the application of the rating schedule to the audiometric findings does not establish entitlement to a compensable disability evaluation for any period on appeal. In short, the Board does not find evidence that the rating assigned for the Veteran's bilateral hearing loss should be rated higher for any other separate period based on the facts found during the entire appeal period. The weight of the competent and probative lay and medical evidence of record is against an initial compensable disability rating during any time within the appeal period. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for an initial compensable rating for bilateral hearing loss, and the claim is denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Extraschedular Consideration The Board also has considered whether referral for extraschedular consideration is warranted. An extraschedular disability rating is warranted based upon 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 schedular standards. 38 C.F.R. § 3.321(b)(1) (2012); 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 determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations 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 a 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 VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, the Board finds that the symptomatology and impairment caused by the Veteran's hearing loss disability, throughout the appeal period, is contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria provide for disability ratings based on audiometric evaluations, to include speech discrimination testing. In this case, the Veteran's hearing loss symptoms are contemplated by the schedular rating criteria. The Board recognizes and has considered the Veteran's reports of increased hearing impairment resulting in less social functioning, which is associated with the service-connected bilateral hearing loss. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns which are not demonstrated in this case, and as measured by both audiological testing and speech recognition testing. Speech recognition is a schedular rating criterion that recognizes an inability to understand certain words in conversation, and in turn, the impacts of that impaired ability on functioning, both daily (social) and occupational. As discussed above, the evidence regarding functional impairment has been considered. For these reasons, the Board finds that the schedular rating criteria in this case are adequate to rate the Veteran's bilateral hearing loss disability; therefore, the Board has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. ORDER A higher (compensable) initial disability rating for service-connected bilateral hearing loss is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs