Citation Nr: 1327817	
Decision Date: 08/30/13    Archive Date: 09/05/13

DOCKET NO.  10-18 353A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania

THE ISSUES

1.  Entitlement to initial ratings for service-connected bilateral hearing loss in excess of 0 percent from August 23, 1999 to March 20, 2007; 10 percent from March 20, 2007 to May 31, 2007, and; 0 percent from May 31, 2007 to August 23, 2011.

2.  Entitlement to an initial rating in excess of 10 percent from August 23, 2011, for service-connected bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

D. Rogers, Associate Counsel

INTRODUCTION

The Veteran served on active duty from July 1946 to December 1947, and from August 1948 to May 1949.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO) in Philadelphia, Pennsylvania.  In that decision, the RO effectuated the Board's October 2009 decision, which granted service connection for bilateral hearing loss, and the RO assigned an effective date of June 17, 2005, and initial ratings of 0 percent from June 17, 2005 to March 20, 2007; 10 percent from March 20, 2007 to May 20, 2007, and 0 percent from May 20, 2007.  The Veteran appealed the October 2009 decision as to the assigned effective date for the award of service connection for bilateral hearing loss and the initial evaluations assigned and perfected his appeal for entitlement to an increased initial ratings for his service-connected bilateral hearing loss disability.

In a March 2010 rating decision, the RO granted an earlier effective date of August 23, 1999, for the award of service connection for bilateral hearing loss and assigned a noncompensable (0 percent) evaluation from August 23, 1999 to March 20, 2007, and continued the previously assigned evaluations of 10 percent from March 20, 2007 to May 31, 2007 and the 0 percent from June 1, 2007.

In an October 2011 rating decision, the RO increased the rating for the Veteran's service-connected bilateral hearing loss to 10 percent, effective August 23, 2011.  As that grant did not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board.  AB v. Brown, 6 Vet. App. 35 (1993).

In October 2010, the Veteran withdrew his request for a personal hearing at the RO.  See 38 C.F.R. § 20.704(e) (2012).

A review of the Veteran's Virtual VA electronic claims file is negative for additional information or evidence pertinent to claim decided herein.

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).

The issue of entitlement to an initial rating in excess of 10 percent from August 23, 2011, for service-connected bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  Prior to March 20, 2007, there are no ratable audiometric evaluations of the Veteran's service-connected bilateral hearing loss disability.   

2.  From March 20, 2007 to May 31, 2007, the evidence of record does not reflect that the Veteran's hearing loss disability has manifested in more than Level V impairment in the right ear and level II impairment in the left ear.  

3.  From May 31, 2007 to August 23, 2011, the evidence of record does not reflect that the Veteran's hearing loss disability has manifested in more than Level IV impairment in the right ear and level II impairment in the left ear.  


CONCLUSION OF LAW

Prior to March 20, 2007 and from May 31 2007 to August 23, 2011, the criteria for the assignment of a compensable disability rating are not met and from March 20, 2007 to May 31, 2007, the criteria for the assignment of a disability rating in excess of 10 percent are not met for service-connected bilateral hearing loss.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012).   




REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist 

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012) and 38 C.F.R.  §§ 3.102, 3.156(a), 3.159, 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 evidence or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  

VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  In cases that concern the assignment of a disability rating, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned.  Id.  Notice should be provided to a claimant before the initial unfavorable decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In this case, in a pre-rating letters dated in September 2005 and June 2008, the Veteran was provided notice of the information and evidence needed to substantiate a claim for service connection for hearing loss.  This notification would also apply to the "downstream" issue of entitlement to a higher initial rating.  The United States Court of Appeals for Veterans Claims (Court) has held that once service connection is granted, the claim is substantiated.  In such instances, additional VCAA notice is not required and any defect in the notice is not deemed prejudicial to the Veteran.  Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007); Dingess, 19 Vet. App. at 491.  Thus, because the VCAA notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied.

VA has also fulfilled its duty to assist in obtaining other identified and available evidence needed to substantiate the Veteran's claims.  VA and private audiological treatment records and examination reports and lay statements of the Veteran and his wife in support of the claim have been associated with the record.  
VA examinations to assess the nature and severity of his hearing loss were performed in March 2007, May 2007, and April 2009.  The Board finds that these examinations, along with the other evidence of record, are fully adequate for the purposes of determining the extent of the Veteran's hearing loss disability in light of the applicable diagnostic criteria.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of adjudication of his claim for increase for service-connected bilateral hearing loss for the period dating prior to August 23, 2011.  

II.  Legal Criteria 

As noted above, the current appeal stems from rating decisions which granted service connection for bilateral hearing loss and assigned initial disability ratings of 0 percent from March 23, 1999 to March 20, 2007; 10 percent from March 20, 2007 to May 31, 2007, and 0 percent from May 31, 2007 to August 23, 2011.  The Veteran and his representative essentially contend that his bilateral hearing loss disability presents a greater degree of impairment than is reflected by initial evaluations currently assigned.  In statements dated in September 2007, November 2009, and April 2010, the Veteran asserted that at least a 10 percent evaluation is warranted for his service-connected bilateral hearing loss disability.  In his January 2012 substantive appeal, he requested the assignment of a 20 percent evaluation for his bilateral hearing loss disability dating since 2005.  

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities.  Ratings are based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

Where there is a question as to which of two evaluations applies, 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.  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 the veteran's disability.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  In instances where the rating being appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings."  See Fenderson v. West, 12 Vet. App. 119 (1999).

When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in the veteran's favor.  38 C.F.R. §§ 3.102, 4.3.  Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim.  If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed.  38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 55.

In cases where the disability rating for hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (performed via the Maryland CNC Test) and a pure tone audiometry test.  Examinations are conducted without the use of hearing aids.  38 C.F.R. § 4.85(a).

In rating disabilities due to hearing impairment, VA must first determine the Roman numerical designation for hearing impairment in each ear based upon a combination of the percent of speech discrimination and the pure tone threshold average.  38 C.F.R. § 4.85.  In general, the Roman numerical designation is determined through application of 38 C.F.R. § 4.85, Table VI.

Under Table VI, the horizontal rows represent eight separate ranges of pure tone threshold averages, as demonstrated through audiometric testing for the frequencies at 1000, 2000, 3000, and 4000 Hertz.  The average pure tone threshold is calculated by determining the sum of the pure tone thresholds demonstrated at the four aforementioned frequencies and dividing that sum by four.  The vertical columns under Table VI represent nine separate ranges of speech discrimination percentage, as determined through Maryland CNC testing.  The Roman numerical designation of impaired efficiency is determined for each ear by intersecting the horizontal row appropriate for the calculated pure tone threshold average and the vertical column appropriate for the demonstrated percentage of speech discrimination.  For example, if audiometric testing shows an average pure tone threshold of 60 in the right ear and Maryland CNC testing shows the percentage of discrimination of 70 in the right ear, the numeric designation level is "V" for one ear.  In the example, the same procedure would be followed for the left ear.  38 C.F.R. § 4.85(b).

Alternatively, in instances where audiometric testing reveals an exceptional pattern of hearing impairment, Roman numerical designations may be determined under 38 C.F.R. § 4.85, Table VIa.  Pursuant to 38 C.F.R. § 4.86, an exceptional pattern of hearing impairment exists where audiometric testing reveals either: (1) pure tone thresholds of 55 decibels or more at each of the frequencies at 1000, 2000, 3000, and 4000 Hertz; or, (2) a pure tone threshold at 30 decibels or less at 1000 Hertz and 70 decibels or greater at 2000 Hertz.  In such exceptional cases, Table VIa provides for a Roman numerical designation that simply corresponds to the calculated pure tone threshold average for each ear.  Here, the evidence does not show that the Veteran has had an exceptional pattern of hearing loss.  Accordingly, the Roman numerical designations for the Veteran's hearing loss will be determined exclusively by application of Table VI.

After the Roman numerical designation has been determined for each ear, VA then determines the appropriate disability rating through application of 38 C.F.R. § 4.85, Table VII.  Table VII is applied by intersecting the appropriate horizontal row (which represents the Roman numerical designation for the poorer ear) with the appropriate vertical column (which represents the Roman numerical designation for the better ear).  For example, if the poorer ear has a Roman numerical designation of "VII" while the better ear has a numeric designation level of "V," the assigned disability rating is 30 percent.  38 C.F.R. § 4.85(e).

III.  Factual Background and Analysis

	a.  Entitlement to an initial compensable evaluation prior to March 20, 2007

There are no VA audiology examinations dating prior to March 20, 2007.  Evidence dating prior to March 20, 2007, includes statements from private medical providers and VA audiometric evaluations performed during VA treatment dated in August 2002, November 2003, and June 2005.  Unfortunately, however, for the reasons discussed below, the Board finds that the audiometric testing performed during the August 2002, November 2003, and June 2005 VA treatment is inadequate for rating purposes.  

Duplicate statements dated in December 1999 and July 2001 from Dr. AAM, D.O., state that upon treating the Veteran for an ear condition in 1996, he complained of decreased hearing acuity.  His hearing acuity was expected to worsen with time due to infection and worsening of a pre-existing (right) tympanic membrane perforation. 

An August 2002 VA primary care note shows that an audiology consultation was requested due to a failed whisper test.  On audiology consultation in August 2002, the Veteran reported a longstanding history of decreased hearing in his right ear, which seemed to have worsened much more lately.  Audiometric evaluation revealed mild to moderate sensorineural hearing loss bilaterally with "normal speech recognition scores" of 92 percent in the right ear and 100 percent in the left ear.  He was found to be a candidate for amplification.  

On VA audiology evaluation in November 2003, the Veteran denied experiencing a change in his hearing since evaluation in August 2002.  Audiometry showed a moderate sensorineural hearing loss in both ears with speech recognition scores of 100 percent bilaterally.  The results showed no decreased in hearing since evaluation in August 2002.

On VA audiology consultation in June 2005, the Veteran reported increased difficulty in hearing since evaluation in November 2003.  Audiometry showed  moderate bilateral sensorineural hearing loss.  Speech recognition scores were mildly decreased in the right ear at 96 percent and remained unchanged in the left ear at 100 percent.  The results showed no significant decrease in hearing since evaluation in November 2003.  

In a March 2006 statement, the Veteran's primary care physician since 1965, Dr. WWS, D.O., stated that the Veteran's hearing had declined significantly in the last year.  Worsening over the past years was beginning to affect the Veteran emotionally.  Audiological evaluation was recommended.   

In a June 2006 statement, Dr. JPC, M.A., stated that he examined the Veteran in November 2003 and June 2005, at which times the Veteran was found to have moderate bilateral sensorineural hearing loss.

On review of the evidence dating prior to March 20, 2007, the Board finds that an initial compensable evaluation is not warranted at any time.  Specifically, there is no ratable audiometric findings dated during this period.  As to the August 2002, November 2003, and June 2005 audiometric evaluations, the Board notes that speech discrimination scores obtained for outpatient treatment purposes at VA facilities are not obtained using the Maryland CNC Test, as mandated under VA regulations for rating purposes.  38 C.F.R. § 4.85.  In the absence of such information, audiometric findings during the aforementioned audiometric evaluations cannot be used for determining the extent of the Veteran's hearing loss.

In light of the foregoing, for the period dating prior to March 20, 2007, the Board concludes that the noncompensable evaluation currently assigned for the Veteran's service-connected bilateral hearing loss disability is appropriate and a higher compensable evaluation is not warranted at any time prior to March 20, 2007. 

	b. Entitlement to an initial evaluation in excess of 10 percent for bilateral hearing loss from March 20, 2007 to May 31 2007

On VA audiology examination in March 2007, the Veteran reported that without use of his hearing aids, he required constant repetition of conversation and he had to increased the volume on the TV.  Audiometric testing showed that puretone thresholds, in decibels, were as follows: 



HERTZ


1000
2000
3000
4000
RIGHT
40
45
65
65
LEFT
35
35
50
60

Puretone threshold averages were 54 decibels in the right ear and 45 decibels in the left ear.  Speech audiometry showed a speech recognition ability of 68 percent in the right ear and 88 percent in the left ear.  The examiner diagnosed  mild to moderately severe bilateral sensorineural hearing loss. 

Application of the results from the March 2007 examination to Table VI in 38 C.F.R. § 4.85 yields findings of Level V hearing loss in the right ear and level II hearing loss in the left ear.  Where hearing loss is at Level V in the worse right ear and level II in the better left ear, a 10 percent evaluation is assigned under Table VII.  38 C.F.R. § 4.85 (2012).  As puretone thresholds at each of the four specified frequencies were not 55 decibels or more in either ear, an exceptional pattern of hearing impairment was not shown.  Thus, findings on this examination do not warrant consideration under 38 C.F.R. § 4.86. 

On review, the evidence does not show that a disability rating in excess of the 10 percent evaluation currently assigned is warranted at any time from March 20, 2007 to May 31, 2007.  


	c. Entitlement to an initial compensable evaluation for bilateral hearing loss from May 31, 2007 to August 23, 2011.

Evidence dating from May 31, 2007 to August 23, 2011 includes a May 2007 and April 2009 VA audiology examinations, statements from private medical providers, a private audiometric evaluation dated in December 2007, and VA audiometric evaluations dated in June 2008, March 2009, March 2011, and April 2011.  Unfortunately, as discussed in further detail below, the Board finds that private audiometric testing performed in December 2007 and VA audiometric testing performed in June 2008, March 2009, March 2011, and April 2011 is inadequate for rating purposes.   

On VA audiology examination in May 2007, the Veteran's hearing aids reportedly did not assist him with hearing and he was poorly motivated to use them.  Audiometric testing showed that puretone thresholds, in decibels, were as follows: 



HERTZ


1000
2000
3000
4000
RIGHT
40
45
60
65
LEFT
35
35
50
60

Puretone threshold averages were 53 decibels in the right ear and 45 decibels in the left ear.  Speech audiometry showed a speech recognition ability of 76 percent in the right ear and 84 percent in the left ear.  The examiner diagnosed mild to moderately severe bilateral sensorineural hearing loss with fair speech recognition scores. 

Application of the results from the May 2007 examination to Table VI in 38 C.F.R. § 4.85 yields findings of Level IV hearing loss in the right ear and level II hearing loss in the left ear.  Where hearing loss is at Level IV in the worse right ear and level II in the better left ear, a noncompensable evaluation is assigned under Table VII.  38 C.F.R. § 4.85 (2012).  As puretone thresholds at each of the four specified frequencies were not 55 decibels or more in either ear, an exceptional pattern of hearing impairment was not shown.  Thus, findings on this examination do not warrant consideration under 38 C.F.R. § 4.86. 

In a September 2007 statement, Dr. WS, D.O., stated that the Veteran experienced difficulty hearing, which was deteriorating despite multiple therapies with poor results.   

In December 2007, the Veteran underwent a private audiological evaluation with an audiologist.  Audiometric testing showed that puretone thresholds, in decibels, were as follows:  



HERTZ


1000
2000
3000
4000
RIGHT
45
55
60
70
LEFT
35
40
50
60

Puretone threshold averages were 58 decibels in the right ear and 46 decibels in the left ear.  Speech audiometry using W-22 discrimination test showed a speech recognition ability of 84 percent bilaterally.  

In a December 2007 statement, the Veteran's private primary care physician, Dr. MG, D.O., stated that the Veteran could benefit from bilateral hearing aids.  

A June 2008 VA audiology treatment note shows that the Veteran reported increased difficulty hearing since his most recent evaluation in March 2006.  His hearing aids were working, however, he had lost one that needed to be replaced.  Audiometry showed a mild, sloping to profound sensorineural hearing loss in the left ear and a moderate, sloping to profound sensorineural hearing loss in the right ear.  Speech recognition scores were mildly decreased at 76 percent in the right ear and 88 percent in the left ear.  

In a January 2009 statement, the Veteran's private primary care physician, Dr. WS, D.O., stated that the Veteran had marked hearing loss that was becoming progressively worse over the years.  

In a March 2009 statement, the Veteran's wife indicated that anyone speaking to the Veteran must yell everything at him.  Also, neighbors in their condominium always request that he lower his TV volume.  

During a March 2009 VA audiology evaluation, the Veteran reported increased difficulty hearing since prior evaluation in June 2008.  He was reportedly told that he needed a new hearing aid.  Audiometry showed mild, sloping to profound sensorineural hearing loss in the left ear and a moderately-severe, sloping to profound mixed hearing loss in the right ear with mildly decreased speech recognition score of 92 percent in the left ear and a moderately-severe speech recognition score of 60 percent in the right ear.  The results showed a significant decreased in hearing since prior examination in June 2008.  

The Veteran was afforded an additional VA examination in April 2009.  During the April 2009 VA examination, the Veteran reported that he frequently had to ask people to repeat themselves, he had a hard time hearing and understanding the television, and misunderstood his wife often.  Audiometric testing showed that puretone thresholds, in decibels, were as follows: 



HERTZ


1000
2000
3000
4000
RIGHT
50
60
80
90
LEFT
40
40
60
65

Puretone threshold averages were 70 decibels in the right ear and 51 decibels in the left ear.  Speech audiometry showed a speech recognition ability of 76 percent in the right ear and 88 percent in the left ear.  The examiner diagnosed moderate to severe mixed hearing loss in the right ear and mild to moderately severe sensorineural hearing loss in the left ear.  

Application of the results from the April 2009 examination to Table VI in 38 C.F.R. § 4.85 yields findings of Level IV hearing loss in the right ear and level II hearing loss in the left ear.  Where hearing loss is at Level IV in the worse right ear and level II in the better left ear, a noncompensable evaluation is assigned under Table VII.  38 C.F.R. § 4.85 (2012).  As puretone thresholds at each of the four specified frequencies were not 55 decibels or more in either ear, an exceptional pattern of hearing impairment was not shown.  Thus, findings on this examination do not warrant consideration under 38 C.F.R. § 4.86. 

In a January 2010 statement, the Veteran requested that VA audiology treatment records dating since 5 years prior be obtained from his VA provider at the Wilmington VAMC.  His VA ENT physician reviewed the October 2009 rating decision pertaining to evaluation of his bilateral hearing loss disability and reportedly stated that the Veteran should be able to receive a 10 percent evaluation for his hearing loss.  The physician allegedly stated that audiometric findings are the opinion of the evaluator as conducting such evaluations is not an exact science.   

During an August 2010 VA ear disease examination, the Veteran reported difficulty with communication and watching TV due to bilateral hearing loss.  

A December 2010 private treatment record from S Hospital shows that the Veteran was able to hear whispered voice.  It was noted that he had bilateral hearing aids but he was not wearing them at that time.

On audiological consultation in March 2011, the Veteran reported increased difficulty hearing since he was last evaluation in March 2009.  Audiometry showed moderate sloping to profound sensorineural hearing loss, right greater than left.  Speech recognition scores were mildly decreased at 84 percent in the left ear and 88 percent in the right ear.  Audiometry results suggested a slight decrease in hearing in comparison to the previous March 2009 evaluation.  

In April 2011, the Veteran underwent a VA audiology evaluation.  Audiometric testing showed that puretone thresholds, in decibels, were as follows: 



HERTZ


1000
2000
3000
4000
RIGHT
50
55
70
85
LEFT
45
50
65
85

Puretone threshold averages were 60 decibels in the right ear and 61 decibels in the left ear.  Speech audiometry showed a speech recognition ability of 86 percent in the right ear and 78 percent in the left ear.  The examiner diagnosed moderate to severe mixed hearing loss in the right ear and mild to moderately severe sensorineural hearing loss in the left ear. 

On review of the evidence dating from May 31, 2007 to August 23, 2011, the Board finds that an initial compensable evaluation is not warranted at any time.  Specifically, the ratable audiometric findings on VA examinations dated in both May 2007 and April 2009 are reflective of findings consistent with the assignment of a noncompensable evaluation for the Veteran's bilateral hearing loss disability.  Findings on those examination do not show that a higher compensable evaluation is warranted for the Veteran's bilateral hearing loss disability during this period.  

As to the private audiometric evaluation dated in December 2007, the Board observes that the report of audiometric evaluation explicitly sates that the W-22 speech discrimination test was used to determine the Veteran's speech recognition ability as opposed to the Maryland CNC Test as mandated under VA regulations.

As to the VA audiometric evaluations dated in June 2008, March 2009, March 2011, and April 2011, the Board again notes that speech discrimination ability obtained for treatment purposes is not tested via the Maryland CNC Test, as mandated under VA regulations.  38 C.F.R. § 4.85.  In the absence of such information, audiometric findings during the aforementioned audiometric evaluations cannot be used for determining the extent of the Veteran's hearing loss.

In light of the foregoing, for the period dating from May 31, 2007 to August 23, 2011, the Board concludes that the noncompensable evaluation currently assigned for the Veteran's service-connected bilateral hearing loss disability is appropriate and a higher compensable evaluation is not warranted at any time.   

Although mindful of the difficulties that the Veteran experiences as a result of his bilateral hearing loss, the Board wishes to note that "disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered."  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  In the absence of contrary audiometric evidence, the "mechanical application" of the diagnostic criteria to the evidence at hand clearly establishes that the Veteran is not entitled to a compensable initial disability rating for bilateral hearing loss at any time prior to March 20, 2007, or from May 31, 2007 to August 23, 2011.  The evidence also clearly establishes that he is not entitled to an initial disability rating in excess of 10 percent from March 20, 2007 to May 31, 2007.  

Subject to the above the Board recognizes that in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that, 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 that regard, the March 2007, May 2007, and April 2009 VA examiners noted that the Veteran was having problems understanding conversational speech and hearing the television, but nonetheless, determined that the hearing loss did not appear to hinder the Veteran's daily and occupational functioning.  The Board concludes that the VA examination reports are adequate for the purpose of rendering a decision in the instant appeal.

In reaching the above conclusions with respect to the Veteran's claim, the Board has not overlooked the Veteran's and his wife's statements with regard to the severity of his hearing loss and any associated functional effects.  The Board also has not overlooked statements from various VA and private treatment providers indicating that the Veteran's hearing loss had worsened.  The Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing trouble hearing, and his wife and treating physicians are competent to report her accounts of witnessing and experiencing difficulty communicating with the Veteran and differences in audiometric findings on audiometric evaluation, which are suggestive of a decrease in hearing.  The Board has considered their contentions documented above and finds that their repots are credible.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  However, the record does not reflect that either the Veteran, his wife, or his treating physicians are competent to assign specific numerical audiological findings to this impairment.  Moreover, as previously indicated, the statements of VA and private treatment providers, which suggest that his hearing loss disability has worsened, are based on audiometric evaluations which have been found to be inadequate for rating purposes.  Accordingly, the objective medical findings and opinions provided in the aforementioned VA audiology examination reports have been accorded greater probative weight.

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).

According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1) (2012).  An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards.  See Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, 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 Board must determine whether the Veteran's 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 Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected hearing loss disability is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's hearing loss disability with the established criteria shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. 

In this regard, the Board notes that the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability.  In support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86.  In this regard, the rating criteria for hearing loss were last revised, effective June 10, 1999.  See 64 Fed. Reg. 25206 (May 11, 1999).  In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids.  VHA had found through clinical studies of veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment.  The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA.  The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting.  59 Fed. Reg. 17295 (April 12, 1994).

Therefore, the Veteran's difficulties caused by his hearing loss disability are contemplated in the regulations and rating criteria as defined.  The mere fact that the Veteran's hearing disability does not satisfy the numerical criteria for a compensable rating under these criteria, to include the criteria specifically designed for the type of real-world impairment experienced by the Veteran, does not place his symptomatology outside of that contemplated by the rating schedule or make application of the rating schedule impracticable in this case.  Accordingly, the Board determines that the Veteran's complaints of hearing difficulty have been considered under the numerical criteria set forth in the rating schedule. 

In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology.  The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.  

In light of the foregoing, the Board concludes that the preponderance of the evidence of record is against the claim for increased initial ratings for the Veteran's hearing loss, and the benefit-of-the-doubt rule is therefore not for application.  38 U.S.C.A. § 5107 (West 2002); see also Gilbert supra.  As the preponderance of the evidence of record is against this claim, it must be denied.  


ORDER

Entitlement to initial ratings for service-connected bilateral hearing loss in excess of 0 percent from August 23, 1999 to March 20, 2007; 10 percent from March 20, 2007 to May 31, 2007, and; 0 percent from May 31, 2007 to August 23, 2011, are denied.


REMAND

Unfortunately, the Board finds that additional development is necessary prior to adjudicating the Veteran's claim for an increased initial rating in excess of 10 percent for his service-connected bilateral hearing loss disability for the period dating since August 23, 2011.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

For the period dating since August 23, 2011, the Veteran essentially contends that his service-connected bilateral hearing loss disability is worse than the currently assigned 10 percent evaluation indicates.  

In support of this contention, the Veteran has submitted a copy of a November 2011 private audiometric evaluation, which suggests that his hearing has worsened since the most recent August 2011 VA audiology examination.  While the November 2011 private report of audiometric evaluation suggests that the Veteran's hearing loss may have worsened, a July 2012 statement of the private audiologist who performed that evaluation confirmed that the Maryland CNC speech recognition test was not used, which is required for VA adjudication purposes.  See 38 C.F.R. § 4.85(c) (2012).  Thus, a remand is needed to provide the Veteran with a new VA audiology examination to evaluate the severity of his bilateral hearing loss disability dating since August 23, 2011.  See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82  (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).

In addition, the Veteran should be requested to identify and invited submit or request VA's assistance in obtaining any ongoing private audiology treatment records dating since August 23, 2011.  Also, ongoing VA audiology treatment records dating since August 23, 2011, if any, should be obtained from the Wilmington, Delaware and Philadelphia VAMCs and associated with the claims file as they are considered to be within VA's constructive possession and part of the record on appeal.  Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). 

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1. Seek the Veteran's assistance in identifying and obtaining any outstanding records of pertinent VA and private treatment for his bilateral sensorineural hearing loss disability dating since August 23, 2011, to specifically include any relevant VA audiology treatment records from the Wilmington, Delaware and Philadelphia VAMCs.

2.  Then, arrange for the Veteran to undergo a VA audiological examination to determine the nature and severity of his service-connected bilateral hearing loss disability.  The claims folder to include the November 2011 private audiological evaluation and any medical records contained in Virtual VA must be made available to and reviewed by the examiner.  If the clinician does not have access to Virtual VA, any treatment records contained in Virtual VA must be printed and associated with the paper claims file so they can be available to the clinician for review.  

All appropriate tests and studies should be accomplished, to include Maryland CNC speech discrimination testing, and all clinical findings should be reported in detail.  To the extent possible, the examiner should attempt reconcile speech discrimination scores noted during VA examination in August 2011 and on private audiological evaluation in November 2011.  The examiner must also fully describe the functional effects caused by the hearing loss. 

3.  After the development requested has been completed, review the examination report to ensure that it is in complete compliance with the directives of this REMAND.  If the examination report is deficient in any manner, the RO/AMC must implement corrective procedures at once.

4.  Thereafter, readjudicate the issue on appeal.  If the benefit sought on appeal is not granted, issue a supplemental statement of the case, and afford the Veteran and his representative an opportunity to respond.  Thereafter, the case must be returned to the Board, if in order 

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).


______________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs