Citation Nr: 1327903 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 12-00 449 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial compensable disability rating for bilateral hearing loss prior to December 14, 2011, and a rating in excess of 40 percent since December 14, 2011. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran had active service in the Army from January 1952 to December 1953. The matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran submitted new evidence concerning his bilateral hearing loss disability in February 2011, within one year of the issuance of the March 2010 rating decision. 38 U.S.C.A. § 7105(b)(1), (c); 38 C.F.R. § 3.156(b); see also Buie v. Shinseki, 24 Vet. App. 242, 252 (2010) (A regional office decision becomes final "only after the period for appeal has run," and that "[a]ny interim submissions before finality must be considered by the VA as part of the original claim."). Thus, the March 2010 rating decision granting service connection and assigning a noncompensable disability rating for the Veteran's bilateral hearing loss never became final. Subsequently, in a March 2011 rating decision, the RO continued a noncompensable disability rating for the Veteran's bilateral hearing loss. Afterward, in a September 2012 rating decision, the RO increased the Veteran's disability rating for bilateral hearing loss to 40 percent, effective December 14, 2011. The Board notes that the Veteran's claim of entitlement to a total disability rating based on individual unemployability (TDIU) was previously denied by the RO in a January 2012 rating decision. The Veteran was notified of that decision, but did not file a subsequent Substantive Appeal for that claim. Therefore, the issue of entitlement to TDIU is not on appeal before the Board. In December 2012, the Board remanded the claim for additional development. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). This appeal was processed using the Veteran's Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. In addition to the VBMS file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the VBMS file or are irrelevant to the issue on appeal. 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). FINDINGS OF FACT 1. Prior to December 14, 2011, the numeric designation of hearing impairment based on puretone threshold average and speech discrimination did not result in a compensable rating. 2. Since December 14, 2011, the numeric designation of hearing impairment based on puretone threshold average and speech discrimination did not result in a rating in excess of 40 percent. CONCLUSION OF LAW A compensable rating prior to December 14, 2011, or a rating in excess of 40 percent since December 14, 2011, is not warranted for the Veteran's bilateral hearing loss. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.85, Diagnostic Code (Code) 6100, 4.86 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Veteran's claim for a higher initial rating for bilateral hearing loss arises from his disagreement with the initial evaluation assigned following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Board notes that the Veteran's service treatment records (STRs) are considered destroyed due to a 1973 fire at the National Personnel Records Center (NPRC). The Veteran was notified of his missing STRs in a January 2009 letter. The RO then issued a Formal Finding on the Unavailability of Records in February 2009. Outside of the Veteran's STRs, the Veteran's statements and post-service VA and private treatment records have been associated with the claims folder. Additionally, the Veteran has not identified any outstanding records that have not been requested or obtained. The Veteran was provided with VA examinations in March 2010, March 2011, December 2011, and April 2013. The Board finds that the VA examinations report are adequate because the examiners conducted clinical evaluations, reviewed the Veteran's medical history, and described the Veteran's bilateral hearing loss in sufficient detail so that the Board's evaluation is an informed determination. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West 12 Vet. App. 119, 126 (1999). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). In cases for which the evaluation of 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 (Maryland CNC) and a pure tone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report. Martinak v. Nicholson, 21 Vet. App. 447 (2007). VA must also consider whether an extra-schedular evaluation under 38 C.F.R. § 3.321(b) should be assigned in the case where the disability has an effect on the Veteran's occupational functioning and daily activities. See Martinak v. Nicholson, 21 Vet. App. 447, 454-55. Hearing loss ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with average hearing thresholds determined by puretone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 cycles per second. "Puretone threshold average" is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz divided by four. This average is used in all cases (including those in §4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85, DC 6100. The rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. 38 C.F.R. § 4.85. The horizontal rows in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect. See 38 C.F.R. §§ 4.85, 4.86. The regulations also provide that in cases of exceptional hearing loss, i.e. when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, the Roman numeral designation will be determined for hearing impairment, separately, from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86. A Roman numeral designation will also be determined from either Table VI or Table VIa, whichever results in the higher numeral, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. That numeral will then be elevated to the next higher Roman numeral. In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. Background The Veteran was afforded a VA audiological examination in March 2010. The Veteran reported that he talks too loud, turns the TV too loud, and has to ask people to repeat what they are saying. The Veteran reported that he does not experience any overall functioning impairment from this condition. The right ear had pure tone thresholds of 35, 35, 45, and 75 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. The left ear had pure tone thresholds of 40, 50, 60, and 70 decibels at these same frequencies. The average threshold for the right ear was 47.5 decibels and for the left ear was 55 decibels. The Veteran had 88 percent speech recognition for the right ear and 84 percent for the left ear. This translates to level II hearing for the right ear and level II for the left ear which, when applied to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable evaluation. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A February 2011 private treatment record shows that the Veteran's right ear had pure tone thresholds of 40, 45, 65, and 65 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. The left ear had pure tone thresholds of 45, 55, 65, and 80 decibels at these same frequencies. The average threshold for the right ear was 53.75 decibels and for the left ear was 61.25 decibels. The Veteran had 84 percent speech recognition for the right ear and 80 percent for the left ear. This translates to level II hearing for the right ear and level IV for the left ear which, when applied to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable evaluation. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Veteran was afforded another VA examination in March 2011. The Veteran reported that his hearing loss causes him to misunderstand conversations. The Veteran reported that his overall functional impairment was difficult hearing clearly in conversation and on the telephone, poorer left ear hearing, and asking speakers to repeat and to speak louder. The right ear had pure tone thresholds of 50, 45, 55, and 65 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. The left ear had pure tone thresholds of 50, 60, 70, and 80 decibels at these same frequencies. The average threshold for the right ear was 53.75 decibels and for the left ear was 65 decibels. The Veteran had 84 percent speech recognition for the right ear and 76 percent for the left ear. This translates to level II hearing for the right ear and level IV for the left ear which, when applied to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable evaluation. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Veteran reported in his April 2011 Notice of Disagreement that he lost his job as a taxi driver because of his service-connected bilateral hearing. The Veteran reported that he could not hear the dispatcher so he was let go. In a June 2011 statement the Veteran also reported that he could not understand the dispatcher so he missed customer pickups. At a December 2011 VA fee based examination the Veteran reported that his overall functional impairment was difficulty clearly hearing speech. The right ear had pure tone thresholds of 60, 80, 85, and 95 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. The left ear had pure tone thresholds of 70, 80, 90, and 95 decibels at these same frequencies. The average threshold for the right ear was 80 decibels and for the left ear was 83.75 decibels. The Veteran had 68 percent speech recognition for the right ear and 72 percent for the left ear. Exceptional patterns of hearing loss were shown in both ears, pursuant to 38 C.F.R. § 4.86(a), as each of the pure tone thresholds at 1000, 2000, 3000, and 4000 hertz (Hz) are 55 decibels or more. Thus, the use of Table VI or Table VIa is available, whichever results in a higher rating. Table VI indicates a numeric designation of VI for the right ear and VII for the left ear. Table VIa indicates a numeric designation of VII for the right ear and VII for the left ear. Thus it is more favorable for the Veteran to use table VIa. The point of intersection on table VII reflects the level of hearing loss consistent with a 40 percent rating. Based on the cumulative audiological evaluations, prior to December 14, 2011, there is no evidence that the Veteran's bilateral hearing loss approximated the criteria for a compensable evaluation. However, the December 2011 VA fee based examination supports a rating of 40 percent since December 14, 2011. The Veteran was afforded another VA examination in April 2013. The Veteran reported that he feels he needs face to face conversation to understand others, and has difficulties understanding in background noise. The right ear had pure tone thresholds of 50, 55, 60, and 80 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. The left ear had pure tone thresholds of 50, 55, 70, and 85 decibels at these same frequencies. The average threshold for the right ear was 61.25 decibels and for the left ear was 65 decibels. The Veteran had 92 percent speech recognition for the right ear and 96 percent for the left ear. This translates to level II hearing for the right ear and level II for the left ear which, when applied to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable evaluation. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Board notes that the April 2013 audiological results equate to a noncompensable rating. However, the Board will not disturb the 40 percent rating the Veteran has been assigned. The Board does find that based on the audiology studies of record, for the period beginning December 11, 2011, the criteria for a rating in excess of 40 percent for bilateral hearing loss disability have not been met. The Board does not discount the difficulties that the Veteran has with his auditory acuity; however, entitlement to an evaluation in excess of 40 percent since December 14, 2011 is not supported by the medical evidence. The assignment of disability ratings for hearing impairment is 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). It is clear that the only possible evaluation for the Veteran's hearing loss is a noncompensable rating prior to December 14, 2011 and a 40 percent rating since. Here, the Board finds that the rating criteria contemplate the Veteran's hearing loss for the entire duration of this appeal. The hearing loss disability is productive of difficulty in hearing others speak and this manifestation is contemplated in the respective applicable rating criteria. The rating criteria are therefore adequate to evaluate his disability. The Board notes that the Veteran reported that he lost his job as a taxi cab driver due to his hearing loss, however, the Veteran has not averred that his hearing loss results in any occupational impairment not contemplated by the schedular rating, nor is there any objective evidence that his hearing loss presents an exceptional or unusual disability picture, with such factors as marked interference with employment or frequent periods of hospitalization, so as to render impractical the application of the regular schedular standards. In Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the United States Court of Appeals for Veterans Claims (Court), noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2012). The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. During the examination in March 2010 the Veteran reported that he talks too loud, turns the TV too loud, and has to ask people to repeat what they are saying. The Veteran reported that he does not experience any overall functioning impairment from this condition. At the March 2011 examination the Veteran reported that his hearing loss causes him to misunderstand conversations. The Veteran reported that his overall functional impairment was difficult hearing clearly in conversation and on the telephone, poorer left ear hearing, and asking speakers to repeat and to speak louder. At the December 2011 examination the Veteran reported that his overall functional impairment was difficulty clearly hearing speech. At the April 2013 examination the Veteran reported that that he feels he needs face to face conversation to understand others, and has difficulties understanding in background noise. Thus, these examination reports included information concerning how the Veteran's hearing loss affects his daily functioning. The Veteran has not reported to VA that there was any prejudice caused by a deficiency in his examinations and the evidence does not show that his difficulty with hearing has resulted in marked interference with employment. For these reasons, referral for consideration of an extraschedular evaluation is not warranted. ORDER Entitlement to an initial compensable disability rating for bilateral hearing loss prior to December 14, 2011, and a rating in excess of 40 percent since December 14, 2011 is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs