Citation Nr: 1327875 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 10-24 435 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an initial compensable disability rating for bilateral hearing loss disability. WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran had active service from January 1965 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of a Regional Office (RO) of the department of Veterans Affairs (VA) in Oakland, California. In April 2012, the Veteran testified in front of the undersigned at a videoconference hearing. A transcript of the hearing has been associated with the claim file. In January 2013, the Board remanded the claim for further development. The requested development has been substantially complied with and the claim is ready for appellate review. FINDINGS OF FACT The Veteran's bilateral hearing loss disability is manifested by no more than Level I hearing impairment bilaterally at any time during the appeal period. CONCLUSION OF LAW The criteria for an initial, compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.385, 4.1, 4.7, 4.85, Tables VI, VIa, VII; 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under Stegall v. West, 11 Vet. App. 268, 271 (1998), where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. As noted in the Introduction above, the Board remanded the Veteran's claim in January 2013. The Board requested that the agency of original jurisdiction (AOJ) obtain an outstanding VA audiogram, dated in November 2012, and obtain a new VA audiological examination. In compliance with the remand directive, the AOJ obtained this treatment record and associated it with the claims file and provided the veteran with a VA examination in February 2013. Thus, there is compliance with the Board's remand instructions. See Stegall, 11 Vet. App. at 271. Preliminary Matters The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the Veterans Claims Assistance Act of 2000 (VCAA), when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA 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. For claims for higher ratings, where, as here, service connection has been granted and the initial rating and effective date have been assigned, the claim of service connection has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement (NOD) with the rating or the effective date of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. See Dingess v. Nicholson, 19 Vet. App. 473, 490-491; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records and relevant VA medical records are in the file. The Board finds that all relevant records identified by the Veteran as relating to this claim have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claim. VA has fulfilled its duty to assist. With respect to claims for higher initial ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). With regard to the Veteran's claim, the Veteran was provided VA examinations which addressed this claim, the most recent of which was conducted in February 2013. There is no objective evidence indicating that there has been a material change in the severity of these service-connected disabilities since he was last examined. See 38 C.F.R. § 3.327(a) (2012). The Board finds the examination reports to be thorough and consistent with contemporaneous medical records and contain sufficient information to rate the Veteran's disability under the appropriate diagnostic criteria. Thus, the examinations in this case are adequate upon which to base a decision with regards to this claim. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria and Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). An appeal from the initial assignment of a disability rating requires consideration of the entire time period involved, and contemplates "staged ratings" where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). However, "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). 38 C.F.R. § 4.85, Diagnostic Code 6100, sets out the criteria for evaluating hearing impairment using puretone threshold averages and speech discrimination scores. Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85; there is no room for subjective interpretation. Scores are simply matched against Table VI to find the numeric designation, then the designations are matched with Table VII to find the percentage evaluation to be assigned for the hearing impairment. 38 C.F.R. § 4.86 allows for the use of either Table VI or Table VIA in determining the appropriate numeric designation when there are exceptional patterns of hearing impairment. The regulation is applicable where testing shows that the veteran had puretone thresholds of 55 decibels or more in each of the specified frequencies (1000, 2000, 3000 and 4000 Hertz ) or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 or more decibels at 2000 Hertz. See 38 C.F.R. § 4.86. 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 (1992). The Veteran contends his bilateral hearing loss disability warrants a compensable disability rating. The Veteran was afforded a VA examination in April 2009, during which puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 10 65 70 65 LEFT 5 60 50 50 Average puretone thresholds were 54 in the right ear and 41 in the left ear. Speech discrimination scores were 96 percent bilaterally. The Veteran underwent an audiological consult in November 2012. An audiogram was conducted at the time, during which puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 70 65 60 LEFT 15 60 50 40 Average puretone thresholds were 53 in the right ear and 41 in the left ear. Speech discrimination scores were 100 percent bilaterally. At a February 2013 VA examination puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 10 65 70 75 LEFT 10 65 70 75 Average puretone threshold was 55 bilaterally. Speech discrimination scores were 96 percent bilaterally. Upon careful review of the evidence of record, the Board finds that the Veteran is not entitled to a compensable rating for his service-connected left ear hearing loss disability. Applying the audiological testing results from the above examinations to Table VI results reveals that the Veteran consistently had a numeric designation of Level I bilaterally. Applying these results to Table VII results in a noncompensable evaluation throughout the appeal period. As such, the Veteran's bilateral hearing loss disability warrants a noncompensable rating based upon the findings of these audiological examinations. The Board has considered the application of 38 C.F.R. § 4.86 (2012) [exceptional patterns of hearing impairment] and notes that the results of the November 2012 audiogram allow for the application of 38 C.F.R. § 4.86 to the right ear. (the Veteran's right ear had puretone threshold less than 30 dB (20 dB) at 1000 Hertz with 70 dB puretone threshold at 2000 Hertz). Applying the Veteran's average right ear puretone threshold of 54 dB to Table VIa results in a numerical designation of Level III hearing in that ear. This numeral, elevated to the next level per § 4.86, results in a numerical designation of Level IV hearing in the right ear. The audiometric readings of the left ear do not warrant consideration under Table VIa. Applying Level IV hearing in the right ear with Level I hearing in the left ear, results in a noncompensable evaluation under Table VII. While the Veteran has testified that his hearing has deteriorated, none of the audiometric examinations reflects a significant decrease in his level of hearing acuity to warrant a compensable rating. The Board sees no convincing evidence that his bilateral hearing loss has increased in severity to independently warrant a compensable rating, or that available findings do not accurately reflect his hearing ability at any time. Hence, the Board concludes that the objective clinical findings outweigh his lay assertions that a compensable evaluation is warranted. The Court in Martinak v. Nicholson, 21 Vet. App. 447 (2007) held that a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report of the examination to facilitate determinations regarding extraschedular consideration. The Court noted that unlike the rating schedule for hearing loss, 38 C.F.R. § 3.321(b) does not rely exclusively on objective test results to determine whether an extraschedular rating is warranted. See Martinak, 21 Vet. App. at 455. While the April 2009 VA examiner did not specifically address the functional effects caused by the Veteran's bilateral hearing loss disability, the Board finds that no prejudice results to the Veteran and, as such, the Board may proceed with a decision. Crucially, other evidence of record adequately addresses this matter. Specifically, at the hearing, the Veteran testified he has a difficult time understanding and hearing people and notices said difficulty now more than before. Moreover, his wife testified that she needs to repeat herself to the Veteran often and his children often ask if he heard them. The February 2013 examiner noted the Veteran has difficulty understanding speech in all listening situations and that his family reports he plays the volume louder than they would prefer. Therefore, while the April 2009 VA examination is defective under Martinak, the Board finds that the evidence of record to include the February 2013 VA examination report is sufficient for the Board to consider whether referral for an extraschedular rating is warranted under 38 C.F.R. § 3.321(b). 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 first 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 level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant'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. The Veteran has not identified any factors which may be considered to be exceptional or unusual, and the Board has been similarly unsuccessful. The evidence of record indicates that while the Veteran is currently unemployed, the unemployment has not been attributed to the service connected bilateral hearing loss. There is nothing in the record to indicate that the Veteran's service-connected bilateral hearing loss disability causes impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. In addition, there is no evidence in the medical records of an exceptional or unusual clinical picture. There is no evidence to suggest, nor does the Veteran so contend, that he has required hospitalization as a result of his bilateral hearing loss disability. Further, the record does not demonstrate any other reason why an extraschedular rating should be assigned. Accordingly, the Board therefore has determined that referral of the case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. In denying the Veteran's claim for an increased rating, the Board observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the evidence of record does not show, and the Veteran has not asserted, that his service-connected bilateral hearing loss disability renders him unable to obtain substantially gainful employment. Accordingly, the issue of TDIU has not been raised in this case. Accordingly, and for the reasons noted above, the Veteran's claim for a compensable rating for left ear hearing is denied. ORDER Entitlement to a compensable evaluation for bilateral hearing loss disability is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs