Citation Nr: 1325344 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 05-05 362 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to a compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from November 1977 to November 1981 and from May 1988 to October 1996. He also had service with the U.S. Naval Reserves from March 1983 to May 1988. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which denied a compensable rating for bilateral hearing loss. In December 2009 the Veteran testified at a Travel Board hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is in the claims file. When the case was last before the Board in February 2013, the issue of entitlement to a compensable rating for bilateral hearing loss was remanded for additional development. As noted by the Board in February 2013, the issues of entitlement to service connection for chest pains and entitlement to an increased rating for the Veteran's service-connected back disability have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT Throughout the entire appeal period, the Veteran's bilateral hearing loss is manifested by no worse than Level III hearing acuity in the right ear and Level III hearing acuity in the 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, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In this case the record reflects that VA provided the Veteran with the required notice by letters mailed in March 2003, August 2004, March 2006, June 2008, August 2008, December 2009, and May 2011. Although the March 2006 letter, which contained the initial notice regarding disability ratings and effective dates, was sent after the initial unfavorable decision, following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the claim in September 2012 and April 2013 supplemental statements of the case. As such, there was no prejudice to the Veteran concerning the timing of these notice elements. See Prickett v. Nicholson, 20 Vet. App. 370 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim is sufficient to cure a timing defect). The Veteran's service treatment records, VA medical treatment records, identified private medical records, and lay statements are of record. The Veteran was provided VA examinations in December 2002, September 2004, October 2004, April 2006, December 2007, August 2008, and June 2011, and an additional VA examination addendum report was obtained in March 2013. The Veteran has not argued, and the record does not reflect that these examinations were inadequate for rating purposes. The Board finds that the examinations are adequate for adjudication purposes because they document the Veteran's subjective complaints and history, were based on an appropriate audiological examination of the Veteran, and provided sufficient information to address the rating criteria for the disability on appeal. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Further, the Veteran was provided an opportunity to discuss the impact on his daily functioning, as well as his audiological history and concerns, and his responses are documented in the December 2009 Travel Board hearing transcript, and the September 2004, April 2006, and August 2008 examination reports. See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). There is no indication in the record that any additional evidence relevant to the issue decided is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this regard, the AMC sent the Veteran a letter in May 2011 requesting additional information regarding treatment for his hearing loss disability, to include sending him consent to release and authorization forms so that VA could obtain any outstanding evidence. The Veteran did not respond to the May 2011 letter or send in any additional evidence. Therefore, as there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. Mayfield, 20 Vet. App. at 543; see also Dingess/Hartman, 19 Vet. App. at 486. The Board finds that the RO has substantially complied with the Board's May 2011 and February 2013 remand instructions. In this regard, the May 2011 remand instructed the RO/AMC to obtain any outstanding VA treatment records since December 2004. The RO/AMC was also instructed to obtain authorization from the Veteran in order to obtain all treatment records from Drs. Patel, Crockett, Feeney, and Singer. Finally, a VA audiology examination was to be scheduled in order to assess the current severity of the Veteran's service-connected bilateral hearing loss. The Board notes that the AMC sent the Veteran a letter in May 2011 indicating that VA treatment records had been obtained from December 2004 to the present. The letter also requested that the Veteran complete and return the authorization and consent to release information forms for Drs. Patel, Crockett, Feeney, and Singer. The Veteran did not respond to the May 2011 letter and no authorization forms or treatment records were submitted by the Veteran. The Veteran underwent a VA audiology examination in June 2011 which addresses the Veteran's hearing loss and the pertinent rating criteria for the disability. The February 2013 remand instructed the RO to return the claims file to the June 2011 audio examiner in order to review the claims file, to specifically include prior VA examinations and an August 2002 private audiology report. The examiner was instructed to interpret the graphs contained on the August 2002 private report and to clarify whether the speech recognition scores found in the August 2002 audiogram report were based on the Maryland CNC word list. An addendum VA opinion report was obtained in March 2013. This report summarizes the previous VA examinations but does not address the private audiogram. For reasons explained in more detail below, the Board finds that there is no prejudice to the Veteran in proceeding with the claim based upon the current evidentiary record. Notably, because the August 2002 audiogram results, as charted, are clear and unmistakable even to laypersons, they may be interpreted by the Board. Savage v. Shinseki, 24 Vet. App. 259 (2011) (noting that the Board may interpret results from a private audiometric graph if it felt it had the expertise); c.f. Kelly v. Brown, 7 Vet. App. 471, 474 (1995). Under these circumstances, an additional remand to comply with the Board's directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the RO Decision Review Officer (DRO) or Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted the issue on appeal and questioned the Veteran about the existence of other treatment records as well as clarified the extent of the current disability. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing. In contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran was asked to (and did) describe the functional effects of his hearing loss disability on his ordinary activities. See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). Additionally, through his testimony, the Veteran demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. In addition the Veteran was represented by a qualified Veterans Service Officer from his representative, Disabled American Veterans. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2), or if there was error, it was harmless due to the Veteran's actual knowledge of what was needed, and that the Board can adjudicate the claims based on the current record. In view of the foregoing, the Board finds that VA has fulfilled its duty to notify and assist the Veteran in the claims under consideration. Adjudication of the claim at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Legal Analysis Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012). The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. In all claims for increase, VA has a duty to consider the possibility of assigning staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold as measured by puretone audiometric tests. To evaluate the degree of disability resulting from service-connected hearing loss, the Schedule establishes eleven levels of impaired efficiency, numerically designated from Level I to Level XI. Level I represents essentially normal hearing acuity for VA compensation purposes, with hearing loss increasing with each level to the profound deafness represented by Level XI. 38 C.F.R. § 4.85, Tables VI, VII (2012). Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85 (2012). An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a) (2012). Exceptional patterns of hearing impairment are addressed in 38 C.F.R. § 4.86. When the pure tone 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. 38 C.F.R. § 4.86(a) (2012). When the pure tone 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. 38 C.F.R. § 4.86(b) (2012). In this case, the Veteran underwent a private audiological evaluation in August 2002. The private audiogram reflects the following pure tone thresholds of each ear, in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 30 30 40 45 36 LEFT 25 25 40 35 31 The results of the August 2002 private audiometric test were charted, not enumerated. As previously noted, because the results as charted are clear and unmistakable even to laypersons, they may be interpreted by the Board. Savage v. Shinseki, 24 Vet. App. 259 (2011) (noting that the Board may interpret results from a private audiometric graph if it felt it had the expertise); c.f. Kelly v. Brown, 7 Vet. App. 471, 474 (1995). Speech discrimination scores were noted to be 100 percent in the right ear and 100 percent in the left ear; however, the report does not indicate that such speech discrimination tests were Maryland CNC controlled speech discrimination tests. A VA audiological evaluation in December 2002, which reflects that, on audiological testing, pure tone thresholds of each ear, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 30 35 45 35 LEFT 40 40 35 45 40 Speech discrimination scores using the Maryland CNC controlled speech discrimination tests were noted to be 100 percent in the right ear and 100 percent in the left ear. The Veteran underwent another VA audiological evaluation in September 2004. The September 2004 VA examination report reflects that, on audiological testing, pure tone thresholds of each ear, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 30 30 40 31 LEFT 25 30 30 45 33 Speech discrimination scores using the Maryland CNC controlled speech discrimination tests were noted to be 84 percent in the right ear and 88 percent in the left ear. The examiner noted that the Veteran complained of difficulty understanding speech in noise. An April 2006 VA audiological evaluation report reflects that, on audiological testing, pure tone thresholds of each ear, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 30 30 45 33 LEFT 25 30 35 50 35 Speech discrimination scores using the Maryland CNC controlled speech discrimination tests were noted to be 84 percent in the right ear and 84 percent in the left ear. The examiner noted that the Veteran reported difficulty understanding speech in noisy backgrounds. A December 2007 VA audiological evaluation report reflects that, on audiological testing, pure tone thresholds of each ear, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 25 25 45 30 LEFT 25 30 30 40 31 Speech discrimination scores using the Maryland CNC controlled speech discrimination tests were noted to be 88 percent in the right ear and 90 percent in the left ear. The examiner noted that the Veteran denied vertigo or ear pathology. An August 2008 VA audiological evaluation report reflects that, on audiological testing, pure tone thresholds of each ear, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 35 45 50 41 LEFT 25 35 40 45 36 Speech discrimination scores using the Maryland CNC controlled speech discrimination tests were noted to be 96 percent in the right ear and 96 percent in the left ear. The examiner noted that there was no history of ear surgeries or vertigo. The examiner noted that the Veteran reported particular hearing difficulties in noisy environments. A June 2011 VA audiological evaluation report reflects that, on audiological testing, pure tone thresholds of each ear, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 30 40 50 39 LEFT 35 35 35 50 39 Speech discrimination scores using the Maryland CNC controlled speech discrimination tests were noted to be 80 percent in the right ear and 80 percent in the left ear. The examiner stated that there are significant effects on the Veteran's occupation. The record reflects that the Veteran is currently employed full time in tractor maintenance. A March 2013 VA examination report reflects that the Veteran's claims file was reviewed. The above listed VA audiology results were recounted. It was noted that all VA speech recognition tests were done using the Maryland CNC word list. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the claim for a compensable rating must be denied. Initially, the Board finds that the August 2002 private audiological report is not adequate for adjudication purposes because it does not indicate that speech discrimination testing was accomplished using the Maryland CNC controlled speech discrimination testing, as is required for examination for hearing impairment for VA rating purposes. See 38 C.F.R. § 4.85(a). Therefore, the Board finds that the August 2002 private audiological report is not probative in this case for determining the Veteran's level of hearing disability for purposes of establishing an increased rating for hearing loss consistent with VA regulations. In any event, and as described in further detail below, even assuming that the speech discrimination scores were obtained using the Maryland CNC word list, the August 2002 private audiological evaluation still does not allow for a compensable rating. The Board finds that the December 2002, September 2004, April 2006, December 2007, August 2008, and June 2011 VA examination reports provide adequate information for rating purposes. Applying the method for evaluating hearing loss to the results of the December 2002, December 2007, and August 2008 VA examination reports, the evaluations revealed Level I hearing in the right ear and Level I hearing in the left ear. The September 2004 and August 2006 VA examination results revealed Level II hearing in the right ear and Level II hearing in the left ear. The June 2011 VA examination results revealed Level III hearing in each ear. All of these results are based on application of the reported findings to Table VI. Application of these findings to Table VII corresponds to no greater than a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. Further, the Veteran was provided an opportunity to discuss the impact on his daily functioning, as well as his audiological history and concerns, and his responses are documented in the December 2009 Travel Board hearing transcript, and the September 2004, April 2006, and August 2008 examination reports. See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). The Veteran does not meet the criteria for an exceptional pattern of hearing because pure tone thresholds at each of the four specified frequencies have not been shown to be 55 decibels or more. Furthermore, none of the audiogram results shows that the puretone threshold was 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. Regarding the August 2002 private audiological evaluation, if the Board were to assume that the Maryland CNC controlled speech discrimination test was used, and applied the percentages and puretone threshold averages from the August 2002 private audiogram to Table VI, the results would yield Level I hearing in the right ear and Level I in the left ear. When these levels are applied to Table VII, only a noncompensable rating is warranted. There are no audiological evaluation results of record indicating a higher level of hearing loss during the period of the claim. Consequently, a compensable rating for the Veteran's bilateral hearing loss is not warranted at any time during the appeal period. The Board recognizes the Veteran's assertions his hearing loss impacted the ordinary conditions of his daily life and caused him difficulty in understanding speech in situations with background noise. While the Board acknowledges the difficulties that the Veteran experiences as a result of his bilateral hearing loss, the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Thus, the Board must base its determination on the audiological evaluation results of record, and is bound by law to apply VA's rating schedule based on such results. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012); see also Lendenmann v. Principi, 3 Vet. App. 345 (1992). In sum, the preponderance of the evidence is against the Veteran's claim for an increased rating at any time during the appeal period. Hart, 21 Vet. App. at 509. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. at 54-56. Extraschedular Consideration An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a 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. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation. 38 C.F.R. § 3.321(b) (1) (2012). Otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 116. The Board finds that the schedular rating for the Veteran's service-connected bilateral hearing loss is adequate. Ratings in excess of the assigned rating are provided for higher levels of severity of the disability, but for certain manifestations which the medical evidence reflects are not present in the Veteran's clinical picture. Therefore, the Veteran's disability picture is contemplated by the Rating Schedule; no extraschedular referral is required. In sum, the record does not reflect that the Rating Schedule is inadequate to contemplate the manifestations of his disability. Thus, no extraschedular referral is required. In denying the Veteran's claims for an increased rating, the Board observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that his service-connected bilateral hearing loss renders him totally unemployable. In fact, the record reflects that the Veteran is currently employed full time. Accordingly, the Board concludes that a claim for TDIU has not been raised. ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs