Citation Nr: 1327143 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 09-27 391 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a higher (compensable) initial rating (evaluation) for bilateral hearing loss. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from August 1987 to October 1990. This appeal comes to the Board of Veterans' Appeals (Board) from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT For the entire initial rating period, audiometric testing has revealed, at worst, average pure tone threshold of 35 and 94 percent speech recognition in the right ear, and, at worst, average pure tone threshold of 55 and 90 percent speech recognition in the left ear. CONCLUSION OF LAW The criteria for a compensable disability rating for bilateral hearing loss have not been met for any period. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.385, 4.1, 4.2, 4.3, 4.7, 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) 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, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 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, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied with respect to the initial rating issue decided herein. The RO sent the Veteran a letter in August 2008 that informed him of the requirements needed to establish service connection for bilateral hearing loss. As this case concerns an initial rating and comes before the Board on appeal from the decision which also granted service connection, there can be no prejudice to the Veteran from any alleged failure to give adequate 38 U.S.C.A. § 5103(a) notice for the service connection claim. See 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 arises from receipt of a notice of disagreement). VA satisfied its duty to assist the Veteran in the development of the claim. First, VA satisfied its duty to seek, and assist in the procurement of, relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file includes the Veteran's private employment hearing test history, VA examination reports, and lay statements. The Board is aware of the decision from the U.S. Court of Appeals for Veterans Claims (Court) in Savage v. Shinseki, 24 Vet. App. 259 (2011), in which it held that VA may not disregard a private audiologic examination report when it reasonable appears that a request for clarification could provide relevant information. Here, the Board is not disregarding the private examination results, but rather applying them to the rating schedule. Thus, remanding for clarification would not assist the Veteran and would only result in undue delay in adjudicating the claim. Additionally, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the issue that has not been obtained. Thus, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's appeal. Second, VA satisfied its duty to obtain a medical opinion when required. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Here, the Veteran was provided with VA audiological examinations (the reports of which have been associated with the claims file) in June 2008 and April 2010. The Board finds these examinations were thorough and adequate. The VA examiners personally interviewed and examined the Veteran, fully reviewed all medical evidence of record, conducted clinical testing that included audiometric testing and speech recognition testing and specifically addressed the relevant criteria in the applicable diagnostic codes. Additionally, neither the Veteran nor his representative has questioned the adequacy of the examinations for rating purposes, and there is no indication of worsening since the last examination was conducted. In this regard, the Board notes that, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that, relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. In the instant case, the June 2008 VA examiner specifically noted the Veteran's complaint that his greatest difficulty was the increased difficulty of communicating at home with his family and at work. The April 2010 VA examiner also specifically noted the Veteran's complaint that he is unable to hear the carbon monoxide alarm or the microwave timer signal. As both VA examiners considered the functional effects of the Veteran's hearing loss ability, the Board finds that the examinations of record are adequate to adjudicate the Veteran's initial rating appeal and no further examination is necessary. The Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Initial Rating for Bilateral Hearing Loss Disability ratings are determined by applying a schedule of ratings that is based on 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). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where, as here, the question for consideration is the propriety of the initial evaluations assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of staged ratings is required whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In February 2008, the Veteran filed his initial claim for VA compensation seeking service connection for hearing loss. In August 2008, the service connection for bilateral hearing loss was granted and a noncompensable (0 percent) initial disability rating was assigned effective from February 13, 2008. In October 2008, the Veteran filed a Notice of Disagreement with the initial 0 percent rating that was assigned. The Veteran contends that he is unable to hear his spouse and children talk to him, he constantly has to read lips to understand what people are saying, and he is unable to hear the telephone ring or carry on conversation on the telephone. He contends this reflects that his hearing loss is more disabling than 0 percent. He stated that the examiner during the June 2008 VA audiological examination told him his hearing loss was severe and that hearing aids would be of no use to him. At the June 2008 VA examination, the Veteran reported increased difficulty communicating at home with his family and at work. At the April 2010 VA examination, the Veteran reported his hearing loss prevented him from hearing the carbon monoxide alarm or the microwave timer signal, affecting his usual occupation and daily activities. Ratings for bilateral defective hearing range from noncompensable (0 percent) 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 level as measured by pure tone audiometric tests at the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from bilateral defective hearing, the rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85. Pursuant to VA's rating schedule, the assignment of a disability rating for hearing impairment is derived by a purely mechanical application of the rating schedule to the numeric designations derived from the results of audiometric evaluations. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Table VIA, "Numeric Designation of Hearing Impairment Based Only on Pure Tone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the pure tone threshold average. Table VIA will also be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of Section 4.86, described in the preceding paragraph. 38 C.F.R. § 4.85(c). 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). Similarly, if the pure tone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz, 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, and that numeral will be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86(b). The evidence of record in this case consists of three hearing tests and several lay statements that have been received from the Veteran. With regard to the hearing tests, the Veteran received a private employment hearing test in June 2007, and VA audiology examinations in June 2008 and April 2010. The June 2007 private employment hearing test notes "moderate loss" in each ear for "high pitch sounds (3k, 4k, 6k)" and "normal" hearing in the right ear and "slight loss" in the left ear for "speech range (500, 1k, 2k, 3k)." It does not provide pure tone thresholds at 1000, 2000, 3000, 4000 Hz levels, rending the audiometric evaluation inadequate for rating purposes. No speech recognition scores were reported, which are generally required to determine hearing acuity for rating purposes. See 38 C.F.R. § 3.385. The June 2008 and April 2010 VA audiological examinations provide complete and comprehensive results with regard to the Veteran's hearing loss pursuant to VA regulations. Additionally, the VA examinations provide similar, if not worse, descriptions of the Veteran's hearing loss. The June 2008 VA examination report describes the Veteran's hearing loss as "normal to severe." The April 2010 VA examination report describes the Veteran's hearing loss in his right ear as "mild" and in his left ear as "moderate." The June 2008 VA examination report notes that the Veteran reported increased difficulty communicating at home with his family and at work. Audiological testing revealed (with pure tone thresholds in decibels): HERTZ 500 1000 2000 3000 4000 RIGHT 5 15 10 25 75 LEFT 5 10 20 70 80 The average pure tone threshold in the right ear was 31.25 decibels. The average pure tone threshold in the left ear was 55 decibels. Word recognition scores, based on the Maryland CNC test, were 100 percent for the right ear and 100 percent for the left ear. The examiner noted word recognition scores were excellent bilaterally. The April 2010 VA examination report notes the Veteran's hearing loss and tinnitus prevented him from hearing the carbon monoxide alarm or the microwave timer signal. Audiometric testing showed (with pure tone thresholds recorded in decibels): HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 10 35 75 LEFT 10 10 25 75 90 The average pure tone threshold in the right ear was 35 decibels. The average pure tone threshold in the left ear was 50 decibels. Word recognition scores were 94 percent with regard to the right ear and 90 percent with regard to the left ear. Applying Table VI to the Veteran's hearing loss, as recorded at the June 2008 VA examination, results in numeric designations of Level I in the left ear and Level I in the right ear, which would equate to a noncompensable (0 percent) rating. Applying Table VI to the Veteran's hearing loss, as recorded at the April 2010 VA examination, results in numeric designations of Level II in the left ear and level I in the right ear, which again equates to a noncompensable rating. 38 C.F.R. § 4.85. Additionally, Table VIA is not for application with either test, because the pure tone threshold was not 55 decibels at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz), nor was the pure tone threshold 70 decibels or more at 2000 Hz, for either ear. 38 C.F.R. § 4.86. The Board has reviewed the multiple letters from the Veteran and, while they do paint a picture of the difficulty his hearing impairment causes, these statements do not establish that a compensable schedular rating is warranted, since such a rating is determined from the application of mechanical audiometric testing and speech recognition scores. As described, the multiple hearing tests do not show a compensable schedular rating is warranted for the Veteran's bilateral hearing loss at any time during the course of his appeal; therefore, staged ratings are not appropriate. For these reasons, the Board finds that the appeal for a higher (compensable) initial rating for bilateral hearing loss must be denied. The Board has considered the doctrine of affording the Veteran the benefit of the doubt; however, as the preponderance of the evidence is against a higher (compensable) initial rating for the entire initial rating period on appeal, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of this issue on that basis. 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where rating based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1) (2012). 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. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"); see Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the Board recognizes and has considered the Veteran's complaints, associated with the service-connected bilateral hearing loss, of being unable to hear his spouse and children talk to him, unable to hear the telephone ring, unable carry on conversation on the telephone, and unable to hear his alarm clock, microwave timer signal, and carbon monoxide detector. 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 testing is a schedular rating criterion that recognizes such an inability to understand certain words in conversation. For these reasons, the Board finds that the schedular rating criteria in this case are adequate to rate the Veteran's bilateral hearing loss. In the absence of evidence that the schedular rating criteria are inadequate to rate the hearing loss, the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 237, 238-39 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is part of an increased rating claim when such claim is expressly raised by a veteran or reasonably raised by the record. In this case, the record does not reflect, and the Veteran does not allege, that he is unemployable due to his bilateral hearing loss disability. Rather, he indicated in his July 2009 Substantive Appeal that he has worked at the same company for 10 years. He has not alleged that he is, or was at any time, unemployable on account his hearing loss. Thus, the Board finds that Rice is inapplicable because there is no evidence of unemployability due to the Veteran's service-connected bilateral hearing loss. ORDER A higher (compensable) initial rating for service-connected bilateral hearing loss is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs