Citation Nr: 1327634 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 12-17 507A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating for in excess of 10 percent for bilateral hearing loss. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had active service from October 1945 to October 1949. The appellant is the legal custodian of the Veteran for VA purposes. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This case was previously before the Board in January 2013 and was remanded for additional development. 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). A claim for increased evaluation includes a claim for a finding of total disability based on individual unemployability (TDIU) where there are allegations of worsening disability and related unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has not alleged unemployability due to hearing loss, and a TDIU claim is accordingly not inferred. FINDING OF FACT For the entire initial rating period, the Veteran had bilateral hearing loss manifested by no worse than a combination of level IV hearing acuity in the right ear and level IV hearing acuity in the left ear. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for bilateral hearing loss have not been met in any period during the appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.7, 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), in part, 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, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Duty to Notify As the October 2010 rating decision granted service connection for hearing loss, that claim is now substantiated. As such, the filing of a notice of disagreement as to the disability ratings assigned does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). See 38 C.F.R. § 3.159(b)(3)(no VCAA notice required because of filing of NOD); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007) (noting that, once an initial VA decision awarding service connection and assigning a disability evaluation and effective date has been made, 38 U.S.C. § 5103(a) notice is no longer required). As for rating the Veteran's disability, the relevant disability rating criteria have been provided to the Veteran, including in the June 2012 statement of the case. Duty to Assist The Veteran has undergone VA examinations that addressed the rating matters presented by this appeal. 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 examinations obtained in this case are adequate, as they considered the pertinent evidence of record, and included an examination of the Veteran and elicited his subjective complaints and clinical measures and observations reported. The examinations described the Veteran's disability in sufficient detail so that the Board is able to fully evaluate the claimed disability. Further, the Board has considered the U.S. Court of Appeals for Veterans Claims' holding in Martinak v. Nicholson, 21 Vet. App. 447 (2007). A review of the VA audiological examinations reflect that the examiners noted the Veteran's situation of greatest difficulty in hearing and provided an adequate description of the functional effects of the Veteran's hearing loss. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations in this appeal has been met. The Board finds that there has been substantial compliance with its January 2013 remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In this regard, the Board observes that the Veteran's September 2011 private audiogram has been interpreted and in May 2013 the Veteran underwent another VA audiological examination. The RO also made two attempts to obtain further clarification from the Veteran's September 2011 private ENT audiologist. The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claim. Disability Rating Criteria Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2011). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of a veteran's disability. Schafrath, 1 Vet. App. at 594. Because the appeal is from the initial rating assigned with the grant of service connection, the possibility of "staged" ratings for separate periods during the appeal period, based on the facts found, must also be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). The severity of a hearing loss disability is determined by applying the criteria set forth at 38 C.F.R. § 4.85. Under these criteria, evaluations of bilateral hearing loss 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 level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85. To evaluate an individual's level of disability, Table VI is used to assign a Roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the pure tone threshold average. 38 C.F.R. § 4.85(b). Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment for each ear. 38 C.F.R. § 4.85(e). The rating criteria provide for alternative ratings when an exceptional pattern of hearing is met. If the puretone threshold at each of the specified frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, an evaluation can be based either on Table VI or Table VIa, whichever results in a higher evaluation. 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 Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa, whichever results in the higher numeral, and that numeral will then be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86(b). To be considered adequate evidence for VA evaluation purposes, testing must be accomplished by a state-licensed audiologist and include both puretone audiometry results and the results of a controlled speech discrimination test, specifically the Maryland CNC test. 38 C.F.R. § 4.85(a). Tests which do not meet these requirements may not be considered in assigning a rating. An October 2010 rating decision granted service connection for bilateral hearing loss and assigned a 10 percent rating, effective April 2, 2010. In an April 2010 letter, a 20-year acquaintance of the Veteran indicated that the Veteran's hearing problem had become severe and had changed his social behavior in that he no longer cared to participate in group functions or activities. In August 2010 the Veteran underwent a VA audiological examination. The Veteran indicated that he had problems hearing ever since a 5-inch gun had been fired near him during service. Pure tone thresholds, in decibels, were, in pertinent part, as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 30 90 100 LEFT 25 40 70 65 The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 60 decibels in the right ear and 50 decibels in the left ear. Speech recognition ability, using the Maryland CNC test, was 76 percent in the right ear and 80 percent in the left ear. The audiological findings correspond to a level IV hearing in the right ear and level IV hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Under Table VII, a designation of level IV hearing in the right ear and level IV hearing in the left ear yields a 10 percent evaluation. 38 C.F.R. § 4.85, Diagnostic Code 6100. Consideration has also been given to 38 C.F.R. § 4.86 for exceptional patterns of hearing impairment, but this section is not applicable to the August 2010 examination findings. Pure tone threshold levels were neither 55 dB or higher at each of the four frequencies, i.e., at 1000, 2000, 3000 and 4000 hertz, nor were they 30 dB or less at 1,000 hertz and 70 dB or more at 2000 hertz. 38 C.F.R. § 4.86(a) and (b). An August 2011 private record noted that the Veteran complained of constant episodes of severe hearing loss. In May 2013 the Veteran underwent a VA audiological examination. The Veteran indicated that it was difficult for him to hear conversations. Pure tone thresholds, in decibels, were, in pertinent part, as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 30 80 95 LEFT 20 45 75 70 The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 55 decibels in the right ear and 52 decibels in the left ear. Speech recognition ability, using the Maryland CNC test, was 86 percent in the right ear and 92 percent in the left ear. The audiological findings correspond to a level II hearing in the right ear and level I hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Under Table VII, a designation of level II hearing in the right ear and level I hearing in the left ear yields a noncompensable evaluation. 38 C.F.R. § 4.85, Diagnostic Code 6100. Consideration has also been given to 38 C.F.R. § 4.86 for exceptional patterns of hearing impairment, but this section is not applicable to the May 2013 examination findings. Pure tone threshold levels were neither 55 dB or higher at each of the four frequencies, i.e., at 1000, 2000, 3000 and 4000 hertz, nor were they 30 dB or less at 1,000 hertz and 70 dB or more at 2000 hertz. 38 C.F.R. § 4.86(a) and (b). As requested in the Board's January 2013 remand, the May 2013 VA examiner provided an interpretation of the Veteran's private September 2011 audiometric examination. Pure tone thresholds, in decibels, were, in pertinent part, as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 35 85 100 LEFT 30 55 80 80 The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 61.1 decibels in the right ear and 61.1 decibels in the left ear. Speech recognition ability scores were not interpreted. The September 2011 record noted that the Veteran indicated that his long-term hearing problem was worsening. The May 2013 VA examiner also provided an interpretation of the Veteran's private December 2012 audiometric examination. Pure tone thresholds, in decibels, were, in pertinent part, as follows: HERTZ 1000 2000 3000 4000 RIGHT 35 40 80 95 LEFT 35 45 70 70 The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 63.8 decibels in the right ear and 55 decibels in the left ear. Speech recognition ability scores were not interpreted. The May 2013 VA examiner also noted that the Veteran had undergone VA audiometric testing in April 2013. Pure tone thresholds, in decibels, were, in pertinent part, as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 25 85 95 LEFT 25 45 75 70 The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 55 decibels in the right ear and 53.8 decibels in the left ear. Speech recognition ability scores were not provided. The September 2011, December 2012, and April 2013 audiometric findings do not reveal exceptional patterns of hearing impairment as understood by 38 C.F.R. § 4.86(a) and (b). These evaluations do not provide any basis for a rating in excess of 10 percent for bilateral hearing loss disability. The Board has reviewed the Veteran's statements and lay statement regarding difficulties with hearing loss, and finds the statements to be credible and consistent in reports of the difficulties in hearing that he experiences. The Veteran is competent to give evidence about what he observes or experiences concerning his hearing loss. Layno v. Brown, 6 Vet. App. 465 (1994). The Board recognizes the difficulties that the Veteran experiences as a result of his hearing loss, specifically including difficulty in being able to hear conversations, and finds that such reports of difficulties are consistent with the speech recognition percentage scores and audiometric decibel thresholds as measured; however, the Board finds to be more probative the very specific audiometric test scores-both the decibel thresholds on audiometric testing and speech recognition scores as tested. See Lendenmann v. Principi, 3 Vet. App. 345 (1992) (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). Without a showing of extraschedular factors, the Board is bound by law to apply VA's rating schedule based on the audiometry results and speech recognition scores. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In sum, a review of the evidence in this case reveals that a rating in excess of 10 percent for bilateral hearing loss has not been demonstrated at any time during the entire appeal period. The preponderance of the evidence is against a higher rating, and the benefit of the doubt rule is therefore not applicable. 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The potential application of the various other provisions of Title 38 of the Code of Federal Regulations have also been considered, including 38 C.F.R. § 3.321(b)(1) (2011), which provides procedures for referral or assignment of an extraschedular evaluation. The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The VA Compensation and Pension Service is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). If the evidence raises the question of entitlement to an extraschedular rating, 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. 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. Thun v. Peake, 22 Vet. App. 111 (2008). In this Veteran's case, the Board recognizes and has considered the complaints of decreased auditory acuity and speech recognition impairment. The schedular rating criteria contemplate the limitations and impairment caused by the Veteran's service-connected hearing loss disability. The hearing loss disability rating on appeal is not one that is rated by analogy, but, instead, has been evaluated under applicable Diagnostic Code 6100, which schedular rating criteria specifically provides for ratings based on all levels of hearing loss, including exceptional hearing patterns which were 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. The fact that there is occupational impact does not render the rating schedule inadequate to evaluate the level of disability. Because the schedular rating criteria is adequate to rate the Veteran's service-connected hearing loss, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. For these reasons, the Board finds that the criteria for referral for extraschedular rating have not been met. 38 C.F.R. § 3.321(b)(1). ORDER An initial rating for in excess of 10 percent for bilateral hearing loss is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs