Citation Nr: 1326202	
Decision Date: 08/16/13    Archive Date: 08/26/13

DOCKET NO.  10-49 518	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to a rating in excess of 20 percent for bilateral hearing loss.


ATTORNEY FOR THE BOARD

J. Connolly, Counsel


INTRODUCTION

The Veteran served on active duty from November 1952 to November 1956.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which denied an increased rating for right ear hearing loss (noncompensable) and also declined to reopen service connection for left ear hearing loss.  In a March 2013 decision, the Board reopened the claim of service connection for left ear hearing, but remanded the issue of service connection for left ear hearing loss on the merits as well as the issue of an increased rating for right ear hearing loss.  

In a July 2013 rating decision, service connection for left ear hearing loss was granted as of the date of claim, November 16, 2009.  Since hearing loss of the ears is rated as a bilateral impairment, the consideration of hearing loss of the right ear was considered as part and parcel of the claim for a higher rating for right ear hearing loss.  The RO determined that the rating for both ears as a bilateral impairment was 20 percent, also from November 16, 2009.  Thus, the matter on appeal is characterized as indicated on the front page of this decision.  Also, the United States Court of Appeals for Veterans Claims (the Court) has held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal."  AB v. Brown, 6 Vet. App. 35, 38 (1993).  Consequently, the matter of a higher rating was not satisfied and remains in appellate status. 

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).


FINDINGS OF FACT

The Veteran currently has Level III hearing in his right ear and Level XI hearing in his left ear.


CONCLUSION OF LAW

The criteria for a rating in excess of 20 percent for bilateral hearing loss disability are not met.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.85, Part 4, Diagnostic Code 6100 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

These notice requirements apply to all five elements of a service-connection claim:  (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted.  Id. at 486.

Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

The notice requirements under 38 U.S.C.A. § 5103 underwent significant changes during the pendency of the Veteran's appeal.  The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) recently held that, for increased rating claims, notice provided to the Veteran under 38 U.S.C.A. § 5103 need not be "veteran specific," and that VA is not required to notify the Veteran that he may submit evidence of the effect of his worsening disability on his daily life, nor is VA required to notify the Veteran of diagnostic codes that his disability may be rated under.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  

The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004).  VCAA letters were sent in December 2009 and March 2013.  The letters, especially in combination, indicated the type of evidence and information needed to substantiate the claim and apprised the Veteran of the Veteran's and VA's respective responsibilities in obtaining this supporting evidence.  The letters also complied with Dingess.

Regarding the duty to assist, the Veteran's pertinent medical records have been obtained, to the extent available.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  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.  There is no objective evidence indicating that there has been a material change in the service-connected disability since the Veteran was last examined.  38 C.F.R. § 3.327(a).  

The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  See VAOPGCPREC 11-95.  The March 2013 VA examination report, as supported by prior evidence, is thorough and supported by the record.  This examination is adequate as the claims file was reviewed, the examiner reviewed the pertinent history, examined the Veteran, provided findings in sufficient detail, and provided rationale.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).   The Veteran was specifically examined to assess and then reassess the severity of this disability in question.  See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995).  The records satisfy 38 C.F.R. § 3.326.

In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim."  See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran).


Rating

Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 C.F.R. § 4.3.  The veteran's entire history is reviewed when making disability evaluations.  See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period.  

However, if VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made.  Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending.  Cf. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007) (Board finding that veteran had disability "at some point during the processing of his claim," satisfied service connection requirement for manifestation of current disability); Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007).  In Hart v. Mansfield, 21 Vet. App. 505 (2007), the United States Court of Appeals for Veterans Claims ("the Court") found no basis for drawing a distinction between initial ratings and increased rating claims for applying staged ratings.  Accordingly, it was held that ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  In this case, there has not been a material change in the disability level and a uniform rating is warranted. 

In evaluating service-connected hearing impairment, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  The schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment.  Testing for hearing loss is conducted by a state-licensed audiologist, including a controlled speech discrimination test (Maryland CNC).

The evaluation is based upon a combination of the percent of 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 in the schedule is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear, the horizontal rows representing the ear having better hearing and the vertical columns the ear having the poorer hearing.  The percentage evaluation is indicated where the row and column intersect.  Table VIa is used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86.  See 38 C.F.R. § 4.85(c).  Copies of the pertinent tables were provided to the Veteran in the statement of the case.

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 VI or Table VIa, whichever results in the higher numeral.  Each ear will be evaluated separately.  See 38 C.F.R. § 4.86(a).  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 elevated to the next higher Roman numeral.  See 38 C.F.R. § 4.86(b).

There are several private audiograms of record which were conducted during the course of the appeal period.  On a January 2009 private audiological evaluation, puretone thresholds, in decibels, were as follows:




HERTZ




1000
2000
3000
4000
RIGHT

30
55
60
90
LEFT

70
110
110
110

The puretone threshold average in the right ear was 58.75.  The puretone threshold average in the left ear was 100.  Speech audiometry revealed speech recognition ability of 80 percent in the right ear and it could not be obtained in the left ear due to the hearing loss.  However, the testing was not shown to use the Maryland CNC word list.  On a later November 2009 private audiological evaluation, puretone thresholds, in decibels, were as follows:




HERTZ




1000
2000
3000
4000
RIGHT

40
55
70
90
LEFT

70
110
110
110

The puretone threshold average in the right ear was 63.5.  The puretone threshold average in the left ear was 100.  Speech audiometry revealed speech recognition ability of 80 percent in the right ear and it could not be obtained in the left ear due to the hearing loss.  Again, however, the testing was not shown to use the Maryland CNC word list.  

On a December 2010 private audiological evaluation, puretone thresholds, in decibels, were as follows:




HERTZ




1000
2000
3000
4000
RIGHT

45
65
70
100
LEFT

70
105
110
110

However, this examination was not signed by any audiologist or examiner and included no comments.  It indicated that the examiner was "ABC," with no specification of who performed it.  As such, the Board does not afford probative value to this opinion.


VA also examined the Veteran in February 2010.  On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows:




HERTZ




1000
2000
3000
4000
RIGHT

45
65
70
100
LEFT

70
105
Over 105
Over 105

Speech audiometry revealed speech recognition ability of 90 percent in the right ear and of 2 percent in the left ear.  The puretone threshold average in the right ear was 70.  The puretone threshold average in the left ear was 96.5.  The examiner stated that there were significant effects on employment due to the Veteran's difficulty in hearing.  

The Veteran argued that the VA audiologist did not properly administer the Maryland CNC word list as he felt there were some irregularities in the testing resulting in findings that made his hearing appear better than is it in actuality.  See Notice of Disagreement, received in March 2010.  Further, it was also not clear whether the private audiograms used the Maryland CNC word list.  In light of the foregoing, the case was remanded for the Veteran to be reexamined.  

The new VA audiological examination was performed in March 2013.  Puretone thresholds, in decibels, were as follows:




HERTZ




1000
2000
3000
4000
RIGHT

50
65
75
95
LEFT

70
105
Over 105
Over 105

The puretone threshold average in the right ear was 71.  The puretone threshold average in the left ear was 96.  Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 0 percent in the left ear due to the hearing loss.  The Maryland CNC word list was used.  The examiner did not feel that the Veteran's daily life or work was affected.

Also, in March 2013, a private audiogram was conducted, but notations on that testing indicated that it was not performed in accordance with VA protocol and should not be used for adjudicative purpose.  Thus, the Board will not afford that examination probative value for rating the Veteran.

The Veteran maintains that he has hearing loss which makes it difficult for him to understand television, radio, phone, movies and conversations.  He does not make any assertions regarding work impairment.  The Veteran is competent to report having difficulty hearing.  He is also credible in his statements in that regard.  However, findings pertaining to his exact audiological findings at various Hertz levels or of his speech recognition scores are more probatively established by audiogram.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).

A review of the examinations findings which included speech discrimination scores reflects that only the VA examinations provided these findings, consistent with the appropriate Maryland CNC word list.  The February 2010 test shows that under the rating criteria, the results constitute Level III hearing on the right and Level XI hearing on the left.  When combined, the result is a 20 percent disability evaluation.  The subsequent 2013 testing shows that under the rating criteria, the results constitute Level II hearing on the right and Level XI hearing on the left.  When combined, the result is a 10 percent disability evaluation.  The RO used results from the VA examination that showed greater hearing loss as the basis for rating the Veteran.  Although the left ear qualifies for consideration under 38 C.F.R. § 4.86, there is no change in the combined rating.  The Board notes that the criteria for a rating higher than 20 percent are not satisfied.

The Board acknowledges the Veteran's contentions regarding his difficulty hearing, however, the audiology examination yielded results warranting a 20 percent rating, at most, throughout the appeal period.  This objective evidence is more persuasive with regard to the level of disability under the Rating Schedule as it specifically pertains to that rating criteria.  The Veteran has not provided the Board with any persuasive evidence that the VA audiometric testing recently conducted was inaccurate nor has he presented evidence from an alternative form of audiological testing which he believes is more representative of his degree of impairment and which shows indications of hearing loss substantially greater that that shown on VA examination.  See Martinak v. Nicholson, 21 Vet. App. 447 (2007).  The VA hearing test is simply a basis to evaluate the nature and extent of the Veteran's hearing loss in an objective manner.  The testing does not suggest that the Veteran does not have some problems with his hearing, simply that the current hearing loss does not provide a basis to grant compensation beyond 20 percent, based on his level of disability.  The Board has reviewed the records and VA examinations, but finds no basis to award the Veteran a higher evaluation.  

The Board in no way discounts the difficulties that the Veteran experiences as a result of his hearing loss.  However, as was explained above, 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.  Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology results of record.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  In this case, the preponderance of the evidence is against a rating in excess of 20 percent.  

In considering the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis.  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, the RO or 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 Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional 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 Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

The symptoms associated with the Veteran's hearing loss disability are not shown to cause any impairment that is not already contemplated by the relevant diagnostic code, as cited above, and the Board finds that the rating criteria reasonably describe his disability.  The Veteran has not been hospitalized and the evidence does not show marked inference with employment, beyond what is ordinarily contemplated.  Therefore, referral for consideration of an extraschedular rating is not warranted.


ORDER

Entitlement to a rating in excess of 20 percent for bilateral hearing loss is denied.



____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs