Citation Nr: 1327241 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 12-15 401 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a higher initial disability rating (evaluation), in excess of 0 percent, for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from February 1954 to November 1955. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. 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). FINDING OF FACT For the entire rating period, audiometric testing has revealed a 37.5 decibel puretone threshold average and 92 percent speech discrimination in the right ear, and a 42.5 decibel puretone threshold average and 90 percent speech discrimination in the left ear. CONCLUSION OF LAW The criteria for an initial compensable evaluation for bilateral hearing loss have not been met for any period. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.85, 4.86 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. Id. The appeal for a higher initial rating for bilateral hearing loss stems from disagreement with the initial evaluation following the grant of service connection. VCAA notice regarding the service connection claim was furnished to the Veteran in November 2011. Courts have held that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. 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 upon receipt of a notice of disagreement). Therefore, no further notice is needed under VCAA regarding this issue. The Veteran was afforded a VA examination in December 2011 to address the rating for bilateral hearing loss. See 38 C.F.R. § 3.159(c)(4) (2012). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination obtained is adequate for rating purposes. The VA compensation examination included a complete audiological examination of the Veteran and addressed all the relevant rating criteria for rating bilateral hearing loss. While a January 2012 lay statement from the Veteran's friend indicates that his hearing has worsened over time, the Veteran does not contend that bilateral hearing loss increased in severity since the most recent rating examination in December 2011, which was completed just one month prior to the lay assertion of worsening made by his friend. Cf. Caffrey v. Brown, 6 Vet. App. 377 (1995). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes service treatment records, a VA examination, VA treatment records, and lay evidence. The record also shows that the Veteran has been in receipt of Social Security Administration benefits since September 2000. SSA records have not been associated with the record; however, the Board finds that a remand for SSA records would not aid in substantiating the Veteran's appeal for higher initial rating for hearing loss. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). In that regard, it is not clear that the Veteran is receiving SSA benefits based on disability. More importantly, because the SSA benefits were granted more than 10 years prior to initial rating period beginning in November 2011, any medical records associated with a prior SSA claim would be of virtually no probative value as to the level of disability a decade later during the current rating period, which is shown by more contemporaneous, relevant, and probative lay and medical evidence created during the appeal period that includes audiometric testing, speech recognition scores, and the Veteran's history and current complaints. For these reasons, the Board finds that there is no reasonable possibility that any medical records that may have been associated with an initial SSA claim could aid in substantiating the claim for a higher initial rating for bilateral hearing loss. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (finding that VA must seek to obtain relevant records under 38 U.S.C.A. § 5103A when "there exists a reasonable possibility that the records could help the veteran substantiate his claim for benefits"). The Veteran and his representative have not identified any outstanding evidence that needs to be obtained. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Disability Rating Laws and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran has challenged the initial disability rating assigned to the service-connected hearing loss disability by seeking appellate review. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (noting distinction between claims stemming from an original rating versus increased rating). Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" rating. Fenderson, 12 Vet. App. at 126. Because the weight of the evidence does not establish that a compensable evaluation is warranted for the entire initial rating period, the Board finds that a staged rating is not warranted for bilateral hearing loss. The Rating Schedule provides rating tables for the evaluation of hearing impairment. Table VI assigns a Roman numeral designation (I through XI) for hearing impairment based on a combination of percent speech discrimination and the puretone threshold average (the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four). Table VII is used to determine the percentage evaluation by combining the Table VI Roman numeral designations for hearing impairment in each ear. 38 C.F.R. § 4.85. When evaluating service-connected hearing impairment, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned in audiometric evaluations. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). 38 C.F.R. § 4.86 provides for exceptional patterns of hearing impairment. 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 is evaluated separately. 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 from either Table VI or Table VIA, whichever results in the higher numeral. That numeral is then elevated to the next higher Roman numeral. Each ear is evaluated separately. 38 C.F.R. § 4.86(b). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Initial Rating Analysis The Veteran is service connected for bilateral hearing loss, which has been initially rated as 0 percent disabling. The Veteran disagreed with the initial rating, contending that a higher (compensable) initial rating is warranted for bilateral hearing loss. He provided lay evidence during the course of the VA examination and has submitted lay evidence from his step-daughter and his friends describing his hearing difficulties, including difficulty with hearing people talk during normal conversation and the need for people to repeat themselves during conversation. After a review of all the evidence, lay and medical, the Board finds that, for the entire rating period, a compensable evaluation in excess of 0 percent is not warranted for bilateral hearing loss. The evidence shows that for the entire rating period audiometric testing revealed a 37.5 decibel puretone threshold average and 92 percent speech discrimination in the right ear, and a 42.5 decibel puretone threshold average and 90 percent speech discrimination in the left ear. On the VA audiological evaluation in December 2011, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 30 40 55 LEFT 25 30 45 70 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 90 percent in the left ear. The VA examiner stated that audiometric test results were valid for rating purposes. The VA examiner also described the functional impact of service-connected hearing loss on the Veteran's daily life and work, which included the Veteran's report of difficulty hearing or understanding people speaking to him on his left side, the need for him to ask people to repeat themselves, difficulty understanding speech in the presence of background noise, the need to turn up the television or radio so that he could hear it, and he reported that not being able to hear what people were saying gave him difficulty while on the job. The December 2011 audiometric findings, applied to Table VI, yield a numeric designation of I for the right ear (37.5 decibel puretone threshold average, and 92 percent speech discrimination), and a numeric designation of II for the left ear (42.5 decibel puretone threshold average, and 90 percent speech discrimination). The numeric designations for the right ear (I) along with the numeric designation for the left ear (II), entered into Table VII, produce a 0 percent evaluation for hearing impairment. The Board finds that puretone thresholds reported on the VA audiological evaluation was not 55 decibels or more at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) and was not recorded at 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz in either ear. Thus, the provision of 38 C.F.R. § 4.86 for exceptional patterns of hearing impairment do not apply in this case. Based on all the evidence of record, lay and medical, the Board finds that a compensable evaluation is not warranted for bilateral hearing loss at any point during the initial rating period. The Board finds that audiometric testing results from the December 2011 VA examination are probative and the examiner specifically addressed the functional effects caused by the Veteran's hearing loss disability. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The Veteran has submitted lay evidence in support of his claim during the December 2011 VA examination and he has submitted statements from his step-daughter and friends. Lay evidence describes the Veteran's functional limitations related to hearing people, specifically with speech discrimination, and the Veteran has reported that he has to ask that people repeat themselves due to these difficulties with speech discrimination. The Veteran and his step-daughter and friends are competent to describe the effects of the Veteran's hearing loss on his daily functioning, and the Board finds that they are credible; however, these descriptions of the Veteran's service-connected hearing loss must be considered in conjunction with the clinical evidence of record as well as the pertinent rating criteria and speech discrimination is specifically contemplated by the rating criteria. The December 2011 VA examination report included a thorough hearing examination and testing and addressed the functional effects caused by service-connected hearing loss. The Board emphasizes that disability ratings are derived by a mechanical application of the rating schedule. Lendenmann 3 Vet. App. at 349. For these reasons, the Board finds that a preponderance of the evidence is against the appeal for an initial compensable evaluation for bilateral hearing loss for any period and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The Board has considered whether referral for an extraschedular evaluation is warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (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. Therefore, 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. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, 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, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant'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." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by bilateral hearing loss is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria specifically provides for disability ratings based on audiometric evaluations, to include speech discrimination testing, which recognizes and measures the inability to hear words in conversation. The speech recognition score is one measure of the Veteran's complaints of difficulty with hearing people talk during normal conversation and the need for people to repeat themselves during conversation. In this case, the Veteran's hearing loss symptoms and associated difficulty with speech discrimination are contemplated by the schedular rating criteria. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155 (2012). "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (2012). While the Veteran has provided lay evidence of functional limitations related to his difficulties with hearing people, the functional limitations imposed by the Veteran's disability are specifically contemplated by the criteria discussed above, including the effect of the Veteran's hearing loss on his occupation and daily life. In the absence of exceptional factors associated with the hearing loss disability, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER For the entire rating period, an initial compensable disability rating in excess of 0 percent for bilateral hearing loss is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs