Citation Nr: 1325233 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 12-18 960 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an initial compensable rating for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD L. Zobrist, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1961 to September 1964. This matter comes to the Board of Veterans' Appeals (Board) from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which, in pertinent part, granted service connection for a bilateral hearing loss disability and assigned a noncompensable rating. The Veteran testified during a hearing before the undersigned Veterans Law Judge in March 2013. A transcript of the hearing is of record. This case was previously before the Board and remanded in May 2013 for additional development. As the requested actions have been accomplished, this case is now before the Board for final appellate consideration. FINDING OF FACT At no time during the appeal period is the Veteran's hearing acuity shown to have been worse than Level I in the right ear or Level IV in the left ear. CONCLUSION OF LAW A compensable rating for bilateral hearing loss is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.85 Diagnostic Code (Code) 6100, 4.86 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A July 2012 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an increased rating; while a November 2012 supplemental SOC (SSOC) readjudicated the matter after the appellant and his representative responded and further development was completed. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). Notably, an August 2010 letter also provided him with general disability rating and effective date criteria. The Veteran has had ample opportunity to respond/supplement the record. He has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) ("where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error). The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. The RO arranged for a QTC examination in September 2010 and a VA examination in June 2013. These examinations are adequate for rating purposes as the examiners obtained a reported history from the Veteran, conducted thorough examinations, and noted the functional loss due to the hearing loss disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). Both examinations included audiometric studies. To the extent that the Veteran avers that the September 2010 examination did not accurately reflect the severity of his hearing loss, he has not challenged the examiner's competency. See Sickles v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that in the absence of a challenge, the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Therefore, the Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. Legal Criteria, Factual Background, and Analysis The Board has reviewed all the evidence in the Veteran's claims file, and in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to the matter on appeal. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that each item of evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Ratings for hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denotes essentially normal acuity and Level XI denotes profound deafness. The assignment of the appropriate numeric level is based on the results of a controlled speech discrimination test (Maryland CNC test) in combination with the claimant's average puretone thresholds. The average threshold is obtained from puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85. Rating specialists use either Table VI or VIA of 38 C.F.R. § 4.85 to determine the correct Roman numeral designation. Table VIA is employed when the use of speech discrimination tests is inappropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (as defined in 38 C.F.R. § 4.86). One such pattern occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000) is 55 decibels or more. 38 C.F.R. § 4.86(a). Another pattern occurs when the puretone threshold at 1000 Hertz is 30 decibels or less and the puretone threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86(b). Where (as here) the rating appealed is the initial rating assigned with a grant of service connection the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). As the current 0 percent rating assigned for the Veteran's bilateral hearing loss encompasses the greatest level of hearing impairment shown at any time during the appeal period, "staged ratings" are not warranted. The Veteran's claim seeking service connection for bilateral hearing loss was received in July 2010. He has undergone two audiological evaluations suitable for rating purposes since the filing of the claim. On September 2010 QTC audiological evaluation, audiometry revealed that puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 0 25 20 64 27.5 LEFT 20 30 50 90 47.5 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 84 percent in the left ear. The examiner concluded that the Veteran had a mild sensorineural hearing loss in the right ear and a moderate, slight conductive overlay hearing loss in the left ear. Profound high frequency hearing loss in both ears was diagnosed. The examiner opined that the hearing loss was at least as likely as not related to noise exposure while in military service. The examiner also noted that the effect of said hearing loss on the Veteran's occupation and daily functioning was the need to be close and speak one-on-one. Under Table VI, the right ear puretone threshold average of 27.5 decibels and speech discrimination of 100 percent constitute Level I hearing in that ear. The left ear puretone threshold average of 47.5 decibels and speech discrimination of 84 percent constitute Level II hearing in that ear. The audiometry does not reflect an exceptional pattern of hearing impairment in either ear. Under Table VII, Level I hearing acuity found in the right ear, combined with Level II hearing acuity found in the left ear, warrants a 0 percent rating under Code 6100. On June 2013 VA examination, audiometry found that puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 20 25 25 65 28 LEFT 25 30 55 90 50 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 78 percent in the left ear. The VA examiner interviewed the Veteran regarding the effects of his hearing loss on occupational functioning and daily activities and noted that the Veteran states that people do not enunciate words as well as the words presented at the hearing exam. He states that he has difficulty hearing people at close range in group settings, but can hear conversations further away. He states that when he worked as a custodian, he could not hears [sic] what children were saying to him and he had to guess. Under Table VI, the right ear puretone threshold average of 28 decibels and speech discrimination of 94 percent constitute Level I hearing in that ear. The left ear puretone threshold average of 50 decibels and speech discrimination of 78 percent constitutes Level IV hearing in that ear. The audiometry does not reflect an exceptional pattern of hearing impairment in either ear. Under Table VII, Level I hearing acuity found in the right ear, combined with Level IV hearing acuity found in the left ear, warrants a 0 percent rating under Code 6100. The Board finds that the September 2010 and June 2013 audiological examinations are adequate as the examiners elicited pertinent history, reviewed the record, conducted a thorough examination with explanation of all findings, and commented on the expected impact of the hearing loss on the Veteran's everyday and occupational functioning. These examinations are probative medical evidence that, while the Veteran's hearing acuity may have worsened, a compensable rating is not yet warranted. The record also contains evidence of private and VA clinic audiometric assessments associated with fitting and maintaining the Veteran's hearing aids. On private assessment in March 2011, a representative from a hearing aid manufacturer recorded audiometric findings as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 25 30 75 37.5 LEFT 35 40 60 95 57.5 The private audiogram results were provided in graph form, and the Board has provided the numeric equivalents above. See Kelly v. Brown, 7 Vet. App. 471, 474 (1995) (noting that interpreting results from an audiometric graph involves fact finding). Results of speech recognition testing were not recorded, and the product representative did not indicate that the provisions of 38 C.F.R. §§ 4.85 and 4.86 were met so as to permit application of Table VIa and determine a rating without the use of speech recognition scores. However, there is no indication that the representative conducting the testing possessed the required qualifications to opine as to the precise severity of the Veteran's hearing loss disability. See 38 C.F.R. § 4.85(a) (hearing impairment examinations for VA purposes must be conducted by state-licensed audiologists). Furthermore, the Board notes that this assessment was provided by a representative of a hearing aid manufacturer for the purpose of determining whether the Veteran would benefit from the purchase and use of such equipment. As the representative's qualifications are unknown and his or her employer benefits from adverse findings, the Board finds that this private audiometric assessment is of very little probative value. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (holding that the probative value of a medical opinion is generally based on, inter alia, the expert's qualifications); see also Caluza v. Brown, 7 Vet. App. 498 (1995) (VA may consider self-interest and desire for monetary gain in weighing credibility of witnesses). In April 2011, the Veteran received a VA audiology clinic assessment in conjunction with fitting him for hearing aids. Neither graphic nor complete numerical results were included in the treatment record. The clinician noted normal hearing bilaterally through 2000 Hz, "sloping to a severe to profound sensorineural high-frequency hearing loss bilaterally." The clinician noted a 25 decibel difference in puretone thresholds between the Veteran's ears at 3000 and 4000 Hz but did not provide those values. Speech discrimination scores were 88 percent in the right ear and 72 percent in the left ear. The Veteran received a follow-up VA audiology clinic hearing aid assessment in October 2011. Again, complete results were not included in the treatment record. The clinician summarized the results as "stable hearing sensitivity with a moderate to profound hearing loss 4000-8000 Hz right ear and a mild to profound hearing loss 3000-8000 Hz left ear." Speech recognition scores were 92 percent (right ear) and 76 percent (left ear). The Board notes that, in comparison with the June 2013 VA audiometric examination, the clinic assessments show slightly decreased values in terms of speech discrimination scores. However, the rating schedule does not contemplate hearing loss rated solely on the basis of speech discrimination assessments and outside the context of puretone thresholds. 38 C.F.R. § 4.85(a). Furthermore, the speech discrimination scores reported in October 2011 are within the same percent discrimination bracket as those reported in June 2013, and the scores reported in April 2011 are very close to those reported in October 2011 and June 2013. Finally, the October 2011 clinician indicated that the Veteran's hearing was stable with respect to the April 2011 assessment. Thus, the Board finds that a single suggestion in April 2011 of decreased speech recognition in the Veteran's VA clinic records does not, given the contrary findings of assessments given shortly prior to (September 2010) and after (October 2011) that assessment, reflect an overall worsening of the Veteran's hearing acuity beyond that reflected in the June 2013 VA audiological examination that would warrant a higher schedular rating for bilateral hearing loss. The Board notes the Veteran's and his spouse's contentions that he should be awarded a compensable rating because his hearing loss has worsened, as well as the testimony in the record regarding functional impairment. Furthermore, the Board acknowledges that the June 2013 VA audiometric examination does, indeed, reflect a worsening in hearing acuity since the September 2010 VA examination. However, hearing loss evaluations are determined by a mechanical application of the rating schedule, which is grounded on numeric designations assigned to audiometric examination results. See, e.g., Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1999), and examination results do not yet reflect that the Veteran's hearing has worsened to a compensable degree. In sum, the Board finds that, based on the probative medical evidence of record, a compensable rating for bilateral hearing loss on a schedular basis is not warranted. The Veteran is advised that, should his hearing acuity worsen further, he may file a claim for an increased rating with the RO. The Board has also considered whether referral for extraschedular consideration is indicated. The evidentiary record does not show any manifestations of, or functional impairment due to, the Veteran's bilateral hearing loss and not encompassed by the criteria for the schedular rating assigned. The functional loss noted on the September 2010 and June 2013 audiological examinations (difficulty hearing in certain occupational situations and with certain daily activities) is fully contemplated by the schedular criteria. The Board finds that the schedular criteria clearly encompass the symptoms and impairment shown and are not inadequate and that, therefore, referral for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). There is no evidence (or allegation) that the Veteran's bilateral hearing loss renders him unemployable. Hence, the matter of entitlement to a total disability rating based on individual unemployability is not raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The preponderance of the evidence is against this claim; therefore, the appeal in the matter must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A compensable rating for bilateral hearing loss is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs