Citation Nr: 1327774 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 09-07 624 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a rating in excess of 10 percent for service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran served on active duty from September 1949 to October 1952. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In April 2012, October 2012, and April 2013, the Board remanded the claim for further development. This appeal was processed using the Veterans Benefits Management System (VBMS) electronic claims processing system. 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 1. Audiological evaluations reflect that the Veteran's service-connected bilateral hearing loss has been manifested by no worse than level I hearing impairment in the right ear and level XI hearing impairment in the left ear. 2. The Veteran has suppurative ear infections as a result of his service-connected bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for service-connected bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1114, 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.321, 3.350, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012). 2. The criteria for a separate 10 percent rating for ear infections have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3, 4.87, Diagnostic Code 6200 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2013). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board finds that all notification action needed to make a decision as to the claim on appeal has been accomplished. Through a March 2008 notice letter, the RO notified the Veteran of the information and evidence needed to substantiate his claim for increase. He was told that the evidence must show that his service-connected bilateral hearing loss had gotten worse or increased in severity. The March 2008 letter provided the Veteran with the general criteria for assigning disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board also finds that the March 2008 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In that letter, the RO notified the Veteran that VA was responsible for obtaining relevant records from any Federal agency and that VA would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer. Additionally, the notice letter asked the Veteran to submit medical evidence, opinions, statements, and treatment records regarding his disability. Consequently, further notification of how to substantiate the claim is not necessary. There is no indication that any additional action is needed to comply with the duty to assist in connection with the issue on appeal. The Veteran's service treatment records could not be obtained as the RO was informed by the National Personnel Records Center that the records were likely destroyed in a fire. Treatment records from the VA Medical Center (VAMC) in Marion, Illinois, and its associated VA Outpatient Clinic (VAOPC) in Evansville, Indiana have been obtained. More recent VA treatment records were obtained pursuant to the Board's April 2013 remand. Records from multiple private treatment providers identified by the Veteran have also been obtained. The Veteran has not otherwise alleged that there are any outstanding medical records probative of his claim on appeal that need to be obtained. Additionally, in April 2008, May 2010, and January 2013, the Veteran was provided VA examinations in connection with his claim, the reports of which are of record. The January 2013 examination was afforded pursuant to the Board's October 2012 remand. The examination reports contain sufficient evidence by which to evaluate the Veteran's bilateral hearing loss in the context of the rating criteria. Moreover, VA medical opinions were obtained as to whether the Veteran's dizziness or ear infections are related to the Veteran's hearing loss in order to determine whether higher or separate ratings are warranted. Thus, VA has properly assisted the Veteran in obtaining any relevant evidence. II. Analysis The Veteran was granted service connection for bilateral hearing loss in February 2000. He was awarded a 10 percent rating effective October 27, 1998. The Veteran filed his present claim for increase in January 2008. He contends that his bilateral hearing loss has worsened and that his left ear is dead. The Veteran and his representative also contend that higher or separate ratings are warranted for other manifestations affecting the ears, including vertigo and dizziness. Disability evaluations are determined by comparing a veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012). The veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established, VA must address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. Consideration of the appropriateness of a staged rating is required. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Additionally, the evaluation of the same disability or the same manifestation under various diagnoses is to be avoided. See 38 C.F.R. § 4.14 (2012). For purposes of determining whether a veteran is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with, the symptomatology of the other conditions. Esteban v. Brown, 6 Vet. App. 259 (1994). Evaluation of Hearing Impairment The assigned evaluation for hearing loss is determined by mechanically applying the rating criteria to certified test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examinations. Evaluations of hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. The rating criteria establish eleven auditory acuity levels designated from I to XI. As set forth in the regulations, Tables VI, VIa, and VII are used to calculate the rating to be assigned. See 38 C.F.R. § 4.85, Diagnostic Code 6100 (2012). Additionally, the regulations allow for evaluating 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, Table VI or Table VIa is to be used, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a) (2012). When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). A VA audiological examination was afforded to the Veteran in April 2008. The examiner diagnosed the Veteran with mixed hearing loss in the right ear and sensorineural hearing loss in the left ear. The examination results documented a puretone threshold average of 48.75 for the right ear and 105+ for the left ear. The Maryland CNC speech recognition score was 94 percent for the right ear and zero percent (could not be tested) for the left ear. Based on those results with the utilization of Table VI, the Veteran had level I hearing impairment in the right ear and level XI hearing impairment in the left ear. Although 38 C.F.R. § 4.86(a) is applicable to the results of the left ear, level XI hearing impairment is the highest level of impairment; thus, no change is warranted. Applying the results to Table VII, a 10 percent rating is warranted for bilateral hearing loss based on the April 2008 audiological examination results. See 38 C.F.R. § 4.85, Diagnostic Code 6100. In May 2010, the Veteran underwent further VA audiological examination. The examiner diagnosed the Veteran with mixed hearing loss in the right ear and sensorineural hearing loss in the left ear. At that time, examination results documented a puretone threshold average of 38.75 for the right ear and 105+ for the left ear. The Maryland CNC speech recognition score was 100 percent for the right ear and zero percent (could not be tested) for the left ear. Based on those results with the utilization of Table VI, the Veteran had level I hearing impairment in the right ear and level XI hearing impairment in the left ear. Applying the results to Table VII, a 10 percent disability rating is warranted for bilateral hearing loss based on the May 2010 VA examination. See 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran was afforded another VA audiological examination in January 2013 pursuant to the Board's April 2012 and October 2012 remands. The examiner diagnosed the Veteran with conductive hearing loss in the right ear and sensorineural hearing loss in the left ear. At that time, examination results documented a puretone threshold average of 52.5 for the right ear and 105+ for the left ear. The Maryland CNC speech recognition score was 100 percent for the right ear and zero percent (could not be tested) for the left ear. Based on those results with the utilization of Table VI, the Veteran had level I hearing impairment in the right ear and level XI hearing impairment in the left ear. Applying the results to Table VII, a 10 percent disability rating is warranted for bilateral hearing loss based on the January 2013 VA examination. See 38 C.F.R. § 4.85, Diagnostic Code 6100. Records from the Marion VAMC and the Evansville VAOPC show regular treatment for hearing loss during the course of the rating period on appeal. The VA treatment records primarily relate to hearing aid fittings. The records do not contain the type of detailed audiological evaluations that are documented in the VA examination reports, nor do they indicate that the Veteran's hearing loss is worse than what is reflected by the VA examination reports. Thus, the records do not provide the basis for a higher evaluation. Records from private treatment records also show treatment for hearing loss and contain audiological evaluations. However, an April 2008 audiogram from Midwest Ear, Nose and Throat surgery uses the "PB50" word list to measure speech discrimination rather than the Maryland CNC list. Therefore, the evaluation is not adequate for rating the Veteran's bilateral hearing loss because the Maryland CNC list is required for examination for hearing impairment for VA purposes. See 38 C.F.R. § 4.85(a). In any case, a February 2009 letter from Dan Gardner Audiology Clinics noted that the Veteran's evaluation was consistent with the April 2008 VA examination. Thus, the records do not provide the basis for a higher evaluation. Given the puretone threshold averages and speech recognition scores as set forth in the three VA audiological examinations, a lack of hearing in the Veteran's left ear is evident. However, in mechanically applying the rating criteria, the combined hearing impairment for his bilateral hearing loss has not been disabling enough to warrant a higher rating. The rating criteria simply do not call for a rating in excess of 10 percent for this level of hearing impairment. See 38 C.F.R. § 4.85, Diagnostic Code 6100. This is so for the entire rating period on appeal. See Hart, 21 Vet. App. at 509-10. The regulations provide that consideration of whether special monthly compensation (SMC) is warranted is required when evaluating any claim for impaired hearing. See 38 C.F.R. § 4.85(g). Certain levels of SMC may be awarded for deafness. However, the SMC criteria require bilateral deafness or some other service-connected disability, such as blindness, which do not apply to the Veteran's case. See 38 U.S.C.A. § 1114 (West 2002 & Supp. 2013); 38 C.F.R. § 3.350 (2012). Therefore, SMC is not warranted for the Veteran's bilateral hearing loss. Separate Rating In March 2012, the Veteran's representative contended that the Veteran's bilateral hearing loss should be rated under Diagnostic Code 6205 for "Meniere's syndrome (endolymphatic hydrops)" or that a separate rating should be awarded for the Veteran's vertigo or loss of balance. Pursuant to the Board's April 2012 remand, the Veteran underwent examination by a VA physician in May 2012 who noted that the Veteran had a history of vertigo or dizziness, and balance or gait problems, since 2011. There was no history of ear infection although suppurative discharge was noted in the right ear. The examiner provided a diagnosis of vertigo and indicated that the condition was caused by ear disease, but with no determination specifically as to the relationship with the Veteran's service-connected bilateral hearing loss. Pursuant to the Board's October 2012 remand, the Veteran was afforded another VA ear examination in January 2013, which was conducted by the same examiner who conducted the May 2012 VA examination. After reviewing the claims file an examining the Veteran, the examiner gave the opinion that the Veteran's dizziness is less likely as not caused by or a result of his hearing loss. Instead, the examiner determined that the Veteran's balance problems are likely related to heart or carotid arteries. The examiner also provided an opinion that the Veteran's hearing loss is likely due to chronic infections in both ears. In June 2013, the same VA examiner provided an addendum opinion pursuant to the Board's April 2013 remand. The examiner provided clarifying opinions that the Veteran's inner ear infections are due to his service-connected ear disorder and that the Veteran's balance problems are due to BPPV (benign paroxysmal positional vertigo), which is a separate condition unrelated to his service-connected ear disease. In consideration of the evidence of record, the Board finds that a separate rating is not warranted for vertigo, dizziness or loss of balance. The VA examiner who issued the May 2012, January 2013 and June 2013 reports explained that the Veteran's balance problems are not due to his service-connected hearing loss but rather to nonservice-connected heart or carotid arteries. The examiner's opinion is the most probative evidence regarding the possible relationship. The opinion was made based on a review of the evidence of record, the Veteran's medical history and a physical examination. This medical question is complex in nature and the medical expert's opinion on the matter outweighs any opinion by the Veteran or his representative as they do not have the requisite expertise to provide a probative opinion on such a complex medical question. Nevertheless, the Board finds that a separate rating is warranted for ear infections that are the result of the Veteran's service-connected hearing loss. The same VA examiner determined that Veteran's inner ear infections are due to his service-connected ear disorder. The opinion is persuasive as it was made based on a review of the evidence of record, the Veteran's medical history and a physical examination. Diagnostic Code 6200 provides for evaluation of chronic suppurative otitis media, mastoiditis, or cholesteatoma. 38 C.F.R. § 4.87 (2012). A 10 percent rating is warranted during suppuration, or with aural polyps and complications are to be evaluated separately. Id. Diagnostic Code 6201 provides that chronic nonsuppurative otitis media with effusion (serous otitis media) is to be rated as hearing impairment. If the Veteran's ear infections are nonsuppurative in nature, a separate compensable rating would not be warranted as his service-connected hearing loss is already rated as hearing impairment; thus, another rating based on hearing impairment would be pyramiding. See 38 C.F.R. § 4.14. Although there is not a significant amount of evidence showing suppurative ear infections, the May 2012 VA examiner noted that the Veteran had suppurative discharge in the right ear. When resolving reasonable doubt in his favor, the Board finds that the Veteran's ear infections more closely approximate chronic suppurative otitis media and that a separate 10 percent rating is warranted. See 38 C.F.R. §§ 4.3, 4.7, 4.87, Diagnostic Code 6200. No other complications are evidenced by the record. The above determinations are based upon consideration of applicable rating provisions. The VA examination reports describe the effects of the Veteran's hearing impairment on his daily life. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). It was noted by the examiners that the Veteran has extreme difficulty localizing sound, that he is required to seat people on his right side in order to communicate, and that he has to ask for repetition nearly constantly. Additionally, an April 2008 record from Midwest Ear, Nose and Throat Surgery notes that the Veteran has difficulty discriminating what is said and rooms with background noise also create more difficulty. Such effects do not take the Veteran's case outside the norm as to warrant referral for consideration of a higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2012). The symptoms of his disability (impaired hearing, infections) have been accurately reflected by the schedular criteria. Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). For the foregoing reasons, the Board finds that the claim for a rating in excess of 10 percent for bilateral hearing loss must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for increase, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Board also finds that a separate 10 percent rating for ear infections should be granted as described above. ORDER A rating in excess of 10 percent for bilateral hearing loss is denied. A separate 10 percent rating for ear infections resulting from service-connected bilateral hearing loss is granted, subject to the laws and regulations governing the payment of monetary awards. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs