Citation Nr: 1327827 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 11-09 948 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an initial compensable rating for sensorineural hearing loss right ear. ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran served from April 1979 to April 1982 and from September 1983 to May 1984. This appeal comes to the Board of Veterans' Appeals (Board) from a February 2010 rating decision of the New York, New York Regional Office (RO), which continued a noncompensable rating for sensorineural hearing loss right ear. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals documents are either duplicative of the evidence in the paper claims file or irrelevant to the issue of appeal. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein have been accomplished. 2. The Veteran's right ear sensorineural hearing loss does not exceed a puretone threshold average of 40 decibels or fall below a Maryland CNC speech discrimination score of 96 percent. CONCLUSION OF LAW The criteria for an initial compensable rating for sensorineural hearing loss right ear have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.85, 4.86, Diagnostic Code (DC) 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In this case, the Veteran's claim for service connection for hearing loss was granted. She then appealed the downstream issue of the rating that had been assigned. Under these circumstances, since the original claim was granted, there are no further notice requirements under the aforementioned law with regard to that issue. The VCAA also requires VA to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record reflects that all pertinent available service treatment records and all other available post-service medical evidence identified by the Veteran have been obtained. The Veteran's written statements are also of record. The Veteran has not identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. VA provided the Veteran with a VA examination in January 2010. The Board finds the examination to be adequate because records from this examination indicate that the examiner considered the relevant history of the Veteran's symptoms, provided a sufficiently detailed description of the disability, and provided an analysis to support the opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of her claim. Legal Principles Disability evaluations are determined by the application of a schedule of ratings, which are based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. The governing regulations provide that the higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. "Staged ratings" or separate ratings for separate periods of time may be assigned based on the facts found following the initial grant of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). Impaired hearing will be considered a disability only after threshold requirements are met. See 38 C.F.R. § 3.385. Once disability is established, levels of hearing loss are determined by considering the average puretone threshold and speech discrimination percentage scores. 38 C.F.R. § 4.85(b). See Lendenmann v. Principi, 3 Vet. App. 345 (1992) (assignment of ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered). To evaluate the degree of disability from defective hearing, the revised rating schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through XI for profound deafness. 38 C.F.R. § 4.85, DC 6100. The provisions of 38 C.F.R. § 4.86 address exceptional patterns of hearing loss. Exceptional patterns of hearing loss are present when the puretone threshold at 1000, 2000, 3000 and 4000 hertz (Hz) is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz. Analysis The Veteran's right ear hearing loss is currently noncompensable under 38 C.F.R. § 4.85, DC 6100. In February 2010, the Veteran was granted noncompensable service connection for sensorineural hearing loss right ear based on a positive VA opinion linking the Veteran's hearing loss to a concussion and right ear perforation suffered in service. In February 2010 she filed a notice of disagreement, alleging that her disability warranted a higher rating. A March 2011 statement of the case continued the noncompensable rating and it has remained noncompensable for the duration of the appeal. In February 2009, the Veteran submitted a claim for hearing loss, alleging that she suffered a broken eardrum in service. Service treatment records confirm that in April 1980, the Veteran ruptured her right tympanic membrane after hitting her head while being attacked. August 2009 private treatment records from an audiologist, "R.S.," noted a "borderline mild sensorineural hearing loss in the left ear and a mild to severe mixed loss in the right ear." R.S. also reported that word recognition performance was "good at the patient's most comfortable listening level in quiet for each ear." R.S. noted that the Veteran might benefit from binaural hearing aids. Objective testing revealed the following: Puretone Threshold 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 35 35 30 45 50 Based on the calculation set forth in 38 C.F.R. § 4.85(d), the puretone threshold frequencies above resulted in the following: Puretone Threshold Average Right Ear 40 The August 2009 private examination did not, however, include a Maryland CNC speech discrimination test as required by 38 C.F.R. § 4.85(a). A January 2010 VA examination noted a diagnosis of mild to moderately severe sensorineural hearing loss in the right ear and normal hearing in the left ear. Objective testing revealed the following: Puretone Threshold 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 25 35 30 45 50 Puretone Threshold Average Right Ear 40 Maryland CNC Speech Discrimination Right Ear 96 The January 2010 VA examiner noted that the Veteran was working as a nurse's aide and that persons who are deaf or hard of hearing generally have the same range of job options as any other person, if given appropriate training and accommodations. A February 2010 rating decision granted service connection for sensorineural hearing loss right ear and awarded a noncompensable rating, effective February 2009. Service connection was granted based upon a finding that the Veteran suffered a right ear drum perforation in service, the result of an assault which led to a concussion. A noncompensable rating was awarded based on the January 2010 VA examination which found an average puretone threshold 40 decibels and a Maryland CNC speech discrimination score of 96 percent. In a February 2010 notice of disagreement, the Veteran claimed that she had "significant hearing loss" that affected her daily life and reminded her of the trauma she experienced when she suffered a concussion in service. She noted that people often tell her that she needs a hearing aid because she frequently has not heard a conversation. She further claimed that she was unable to finish nursing school because she could not properly use a stethoscope due to her hearing loss. In an April 2011 VA Form 9, the Veteran disagreed with a March 2011 statement of the case which continued the noncompensable rating for the same reasons as stated in the February 2010 rating decision. The Veteran argued that the August 2009 statement by R.S. that she has "mild to severe mixed loss in the right ear" was sufficient to warrant a 20 percent disability rating. She also argued that objective findings in the audiometric examinations were inaccurate because they were conducted in a sound proof area, and therefore did not mimic the normal background noise of everyday life. In an August 2011 appellant statement, the Veteran again asserted that the results of the August 2009 private audiological examination and service treatment records show that she warrants a compensable disability rating. In a January 2012 VA examination for traumatic brain injury (TBI), the examiner noted that the Veteran had reported that she had graduated from a licensed practical nursing program in 2011, became licensed and had been practicing in a community nursing facility. In March 2013, the Veteran was also granted service connection for a right ear tympanic membrane rupture and assigned a noncompensable rating. The Board finds that an initial compensable disability rating for sensorineural hearing loss right ear is not warranted. The Board relies on the January 2010 VA examination test results in making this determination. Although the January 2010 VA examiner noted that the Veteran had mild to moderately-severe hearing loss in the right ear, objective audiometric findings-rather than diagnoses alone-are determinative of the disability rating. Lendenmann, 3 Vet. App. 345. Therefore, the Veteran's other argument-that because R.S. stated that she had "mild to severe" hearing loss, she warrants a higher rating-is also inapplicable. Here, objective audiometric test results do not warrant a compensable disability rating. See 38 C.F.R. § 3.385; 38 C.F.R. § 4.85(b). In the January 2010 VA examination, the Veteran's average puretone threshold of 40 decibels and Maryland CNC speech discrimination score of 96 result in a Roman numeral designation of I under Table VI. See 38 C.F.R. § 4.85. Service connection is not in effect for the left ear. Pursuant to 38 C.F.R. § 4.85(f), if impaired hearing is service-connected in only one ear, to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman numeral designation of I, subject to the provisions of 38 C.F.R. § 3.383. Here, 38 C.F.R. § 3.383 is inapplicable because the Veteran is not service-connected at a compensable level for any ear. Therefore, applying the highest value for the right ear to the nonservice-connected left ear under Table VII, the Board finds that the Veteran's hearing loss was correctly evaluated as 0 percent disabling in the February 2010 rating decision. The August 2009 private examination did not include a Maryland CNC test as required by 38 C.F.R. § 4.85(a), and the examiner did not certify that a speech discrimination test was inappropriate under 38 C.F.R. § 4.85(c) or 38 C.F.R. § 4.86. Therefore the private examination results cannot be applied for VA purposes. 38 C.F.R. § 4.85(a). Even if those puretone threshold results could be used, they would result in a noncompensable rating as the puretone threshold average was 40 decibels-a level corresponding to a Roman numeral designation of I under Table VIA. See 38 C.F.R. § 4.85. The evidence does not show an exceptional level of impaired hearing in the right ear such that 38 C.F.R. § 4.86 is applicable. None of the puretone threshold frequencies in the January 2010 VA examination exceeds 55 decibels. Again, the August 2009 private examination findings are not valid for VA purposes, but even if they were, none of the frequencies exceeds 55 decibels. The Board notes 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. The January 2010 VA examiner specifically noted that the Veteran complained of "declining" hearing in the right ear and that she was working as a nurse's aide. The examiner further noted that with few exceptions, persons who are deaf or hard of hearing, if given appropriate training and accommodations, have the same range of job options as any other person. Thus, the examiner fully described the functional effects and the Board may proceed with a decision. The Board finds that no higher evaluation can be assigned pursuant to any other potentially applicable DC. Because there are specific DCs to evaluate hearing loss, consideration of other DCs for evaluating the disability does not appear appropriate. See 38 C.F.R. § 4.20 (permitting evaluation, by analogy, where the rating schedule does not provide a specific diagnostic code to rate the disability). See Butts v. Brown, 5 Vet. App. 532 (1993). Accordingly, the Board finds that the preponderance of the evidence is against an initial compensable disability rating for right ear hearing loss. 38 C.F.R. §§ 4.85, 4.86. Extraschedular Consideration The Board has considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extraschedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available scheduler evaluations for that service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case, medical evidence fails to show anything unique or unusual about the Veteran's hearing loss that would render the schedular criteria inadequate. The Veteran's main symptoms appear to be difficulty hearing which is specifically contemplated in the rating assigned. Therefore, the Board concludes that the assigned scheduler evaluation reasonably describes the Veteran's hearing loss. Accordingly, referral for consideration of an extraschedular rating is not warranted. The Board has also considered whether the issue of entitlement to a total disability rating based on individual unemployability (TDIU) has been reasonably raised by the record. In the February 2010 notice of disagreement, the Veteran claimed that her hearing loss affected her ability to complete vocational training as a nurse. She claimed that she was unable to finish nursing school because she could not properly use a stethoscope due to her hearing loss. However, in the January 2012 VA examination for TBI, the examiner reported that the Veteran had said that she had graduated from a licensed practical nursing program in 2011, obtained her license and begun practicing in a community nursing facility. The January 2010 VA examination also noted that she was working as a nurse's aide at the time. Therefore, the Board finds that the issue of entitlement to TDIU has not been reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In deciding the Veteran's claims, the Board has considered whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. Fenderson, 12 Vet. App. at 119. The Board does not find evidence that the Veteran's service-connected right ear hearing loss should be increased for any other separate period based on the facts found during the whole appeal period. ORDER An initial compensable rating for sensorineural hearing loss right ear is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs