Citation Nr: 1326184 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 09-11 008 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Joshua Stone, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from March 1963 to January 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO). In May 2012, the Veteran's claim was remanded by the Board to the RO to provide the Veteran with a VA examination. This was accomplished in May 2012, and the VA examination report is adequate to decide the claim. Therefore, the Board finds that there has been substantial compliance with the May 2012 remand. Stegall v. West, 11 Vet. App. 268 (1998). The issues of entitlement to service connection for a headache disability, a right knee disability, and a back disability were raised by the Veteran in April 2013, 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 Since the initial grant of service connection, the Veteran's bilateral hearing loss has been manifested by no more than Level II hearing acuity in the right ear and Level II hearing acuity in the left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.21, 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Prior to the initial adjudication of the Veteran's claim, a letter dated in February 2008 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. There is no indication in the claims file that the Veteran is receiving benefits from the Social Security Administration (SSA). 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). In May 2012, the Veteran was provided with a VA examination addressing the severity of his service-connected bilateral hearing loss. The Veteran has not indicated that he found this examination to be inadequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, the Board finds that the VA examination obtained in this case is adequate, and it provides sufficient detail to determine the severity of the Veteran's service-connected bilateral hearing loss and included a discussion of the functional effects of the Veteran's hearing loss. Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). 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) (2012) requires that the 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. In this case, the VLJ explained the issue on appeal and the information that the Veteran could provide in support of his claim. The Veteran's attorney and the VLJ asked questions to ascertain whether the Veteran's bilateral hearing loss was correctly rated. The record does not reflect that pertinent evidence that would substantiate the claim was identified by the Veteran or his attorney. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for an increased rating. Neither the Veteran's attorney nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). 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. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). The Veteran asserts that he is entitled to an initial compensable evaluation for his bilateral hearing loss. During an October 2010 hearing before the Board, the Veteran testified that his hearing loss caused him to have difficulty hearing over the telephone. He noted that he frequently had to hand the telephone to his wife to listen or had to turn the volume on the telephone to high. He indicated that he always had to ask others to repeat themselves and that his wife frequently told him that he turned the volume on the television up too high. He reported that his hearing loss impacted his work and estimated a 20% to 25% loss of business as a result, because hearing impairment was not very well-received in the business community. He stated that he did not wear hearing aids and that his hearing impairment required him to drive with the music low or off in his car to avoid distraction. 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; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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. VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). VA disability compensation for impaired hearing is derived from the application in sequence of two tables. See 38 C.F.R. § 4.85(h), Table VI and Table VII. Table VI correlates the average pure tone sensitivity threshold, derived from the sum of the 1000, 2000, 3000, and 4000 Hertz (Hz) thresholds divided by four, with the ability to discriminate speech, providing a Roman numeral to represent the correlation. Each Roman numeral corresponds to a range of thresholds in decibels and of speech discriminations in percentages. The table is applied separately for each ear to derive the values used in Table VII. Table VII prescribes the disability rating based on the relationship between the values for each ear derived from Table VI. See 38 C.F.R. § 4.85. When the pure tone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hz is 55 decibels or more, the Roman numeral designation for hearing impairment is determined from either Table VI or Table VIa, whichever results in a higher number. Each ear is evaluated separately. 38 C.F.R. § 4.86(a). When the pure tone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz, the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results is the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear is evaluated separately. 38 C.F.R. § 4.86(b). By a June 2008 rating decision, service connection for bilateral hearing loss was granted, and a noncompensable evaluation was awarded, effective February 19, 2008, under 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran filed a notice of disagreement contesting the assigned rating in August 2008, and he perfected his appeal in March 2009. In May 2008, the Veteran underwent a VA audiological examination. The Veteran complained that he had difficulty understanding speech if there was any background noise in his environment. He noted that he requested repetition often. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 15 45 60 LEFT 5 10 10 20 40 The pure tone threshold average was 33.75 decibels in the right ear and 20 decibels in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 100 percent in the left ear, using the Maryland CNC test. Immittance testing indicated normal middle ear function. Otoscopy revealed clear ear canals with intact eardrums in both ears. Tympanometry indicated pressure, compliance, and ear canal volume within normal limits in both ears. The VA examiner diagnosed right ear moderate to profound sensorineural hearing loss and left ear moderate sensorineural hearing loss. A January 2011 audiological evaluation shows that, on the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 40 40 65 95 LEFT 35 35 35 55 60 The pure tone threshold average was 60 decibels in the right ear and 46.25 decibels in the left ear. Although speech recognition testing was performed, the report reflects that the Maryland CNC test was not used. The examiner reported that the test was not adequate for rating purposes, as speech recognition scores did not match the pure tone threshold averages, even with patient re-instruction. The examiner indicated that the Veteran was recommended to auditory verbal therapy and to have a neurological follow-up due to very poor word recognition scores. The diagnoses were right ear moderate to profound sensorineural hearing loss and left ear moderate to moderately-severe sensorineural hearing loss. A March 2011 VA treatment record summarized the results of the January 2011 private audiological evaluation. The VA physician indicated that the January 2011 audiogram reflected a significant decrease in hearing. A May 2011 record reflects the Veteran's complaints of decreased hearing over the prior years with difficulty hearing his wife speak. He indicated that he had greater difficulty hearing in situations where noise was present. The record reveals that air conduction thresholds were performed, but does not provide the results of that evaluation. The diagnoses were mild to profound sensorineural hearing loss in the right ear with good word recognition score, and mild to moderately-severe sensorineural hearing loss in the left ear with good word recognition score. The physician reported that the results showed a slight improvement in pure tone thresholds in the low frequencies and in the speech recognition thresholds, as compared with previous test findings, and a significant improvement in word recognition score for both ears. The physician reported that the Veteran evidenced a significant functional impairment in communication during activities of daily living, and that the effects of his hearing impairment necessitated hearing aids. A June 2011 record reveals that the Veteran's left ear haring aid was repaired and that the Veteran was scheduled to return for a hearing aid fitting. In July 2011, the Veteran was provided with hearing aids. In November 2011, the Veteran underwent another VA examination. The examiner reported that the Veteran's hearing acuity could not be tested at any of the required frequencies. The examiner explained that he was unable to obtain an accurate test on the Veteran's hearing. Speech recognition testing initially yielded thresholds that were significantly elevated as compared to previous testing performed six months before. Following re-instruction, responses improved, however the Veteran continued to exhibit non-organic behaviors (i.e. part-word answers, rhyming answers), which suggested that responses did not accurately reflect his true threshold. The examiner further explained that responses to pure tones were inconsistent with speech recognition scores. The examiner stated that it was important to note that the Veteran was able to respond to conversational level speech with no difficulty, even when the examiner stood behind him, which should not have been possible given the levels that he was responding to on the test. Re-instruction was given, however the Veteran continued to offer inconsistent responses to pure tones. Objective testing using otoacoustic emissions testing was performed, which revealed that emissions were present and robust through 3000 Hz in the left, which suggested normal or near normal hearing at those frequencies. Responses could not be measured in the right ear due to artifact from excessive noise. The examiner was also unable to test speech discrimination using the Maryland CNC test. With regard to the functional impact of the Veteran's hearing loss, the examiner reported that the Veteran claimed that his hearing loss affected his ability to do business and stated that he often had to ask others to repeat themselves. In May 2012, the Veteran underwent another VA audiological examination. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 65 90 LEFT 15 20 15 30 60 The pure tone threshold average was 49 decibels in the right ear and 31 decibels in the left ear. Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 84 percent in the left ear, using the Maryland CNC test. The diagnoses was bilateral sensorineural hearing loss. With regard to functional impairment, the examiner stated that the Veteran reported that he could not hear properly, that he constantly had to ask people to repeat themselves, and that he had a lot of difficulty hearing when there was background noise. A September 2012 private audiogram reflects that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 40 40 70 95 LEFT 35 30 40 65 85 The pure tone threshold average was 61.25 decibels in the right ear and 55 decibels in the left ear. Although word recognition testing was performed, the test does not indicate whether the Maryland CNC test was used. The Veteran's hearing loss, as shown in the May 2008 VA audiological examination, resulted in Level I hearing acuity, bilaterally. 38 C.F.R. § 4.85, Table VI. The May 2012 VA audiological examination reflects that the Veteran's hearing loss resulted in Level II hearing acuity, bilaterally. Id. While the January 2011 evaluation and the September 2012 private evaluation both indicate that word recognition testing was performed, they do not reflect that the test performed was the Maryland CNC test, as required by VA regulations. 38 C.F.R. § 4.85. Therefore, the results of those examinations are not adequate to determine the level of hearing impairment caused by the Veteran's hearing loss under the pertinent rating criteria. Id. While 38 C.F.R. § 4.85, Table VIa permits the use of only pure tone threshold averages, without speech discrimination testing, to determine the appropriate numeric designation of hearing impairment in certain circumstances, those circumstances are not present in this case. See 38 C.F.R. §§ 4.85(c); 4.86. In addition, a statement by the January 2011 examiner reflects that the evaluation was not adequate for rating purposes, and that the stated speech scores did not match pure tone threshold averages, even after re-instruction. Similarly, as explained above, the November 2011 VA examiner found that the pure tone thresholds could not be tested, as the results were not accurate due to the Veteran's non-organic behaviors and inconsistent responses, even after re-instruction. Accordingly, the Board will not consider the results of the January 2011, November 2011, and September 2012 evaluations in determining the level of disability caused by the Veteran's bilateral hearing loss, as they are inadequate examinations. The assignment of disability evaluations for hearing impairment is a purely mechanical application of the rating criteria from which the Board cannot deviate. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992); see also Massey v. Brown, 7 Vet. App. 204, 208 (1994) (finding the Board may only consider the specific factors as are enumerated in the applicable rating criteria). With a numeric designation of II for the right ear and II for the left ear, the point of intersection on Table VII requires the assignment of a noncompensable rating under Diagnostic Code 6100. 38 C.F.R. § 4.85. Accordingly, an initial compensable evaluation is not warranted for bilateral hearing loss. 38 U.S.C.A. 5110 ( West 2002); see also Fenderson, 12 Vet. App. 126. Additionally, the Veteran's service-connected hearing loss does not satisfy the "exceptional pattern" defined in 38 C.F.R. § 4.86 at any time during the course of his appeal. Accordingly, an initial compensable evaluation for bilateral hearing loss is not warranted. Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2012). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's bilateral hearing loss disability picture is not so unusual or exceptional in nature as to render the rating for this disorder inadequate. The criteria by which the Veteran's bilateral hearing loss is evaluated specifically contemplate the level of impairment caused by that disability. Id. As demonstrated by the evidence of record, the Veteran's bilateral hearing loss is manifested by no more than Level II hearing acuity in each ear. See 38 C.F.R. § 4.85, Table VI. When comparing these results with the hearing acuity contemplated by the Rating Schedule, the Board finds that the schedular evaluations regarding the Veteran's bilateral hearing loss disability are not inadequate. Compensable evaluations are provided for certain audiological findings for bilateral hearing loss, but the medical evidence reflects that those findings are not present in this case. Therefore, the noncompensable evaluation awarded is adequate and no referral is required. See 38 C.F.R. § 4.85; see also VAOPGCPREC 6-96; 61 Fed. Reg. 66749 (1996). Last, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for entitlement to a total disability rating based on individual unemployability is part of an increased rating claim when such claim is raised by the record. In this case, the Veteran does not contend, and the evidence does not suggest, that he is unemployable as a result of his service-connected bilateral hearing loss. Although the Veteran mentioned that his hearing impairment affected his business, as hearing impairment was not very well-received in the business community and he had trouble communicating with others, he does not allege that he is unemployable as a result of his service-connected bilateral hearing loss. Thus, the issue of entitlement to a total rating for compensation purposes based upon individual unemployability has not been raised by the evidence of record, and the issue is not before the Board at this time. ORDER Entitlement to an initial compensable evaluation for bilateral hearing loss is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs