Citation Nr: 1327937 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 09-25 813 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an initial compensable rating for service-connected bilateral hearing loss. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1975 to September 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which granted service connection for bilateral hearing loss and assigned a noncompensable rating. The issue of entitlement to a TDIU was not certified for appeal. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). As the evidence suggests that the Veteran may be unemployable due to symptoms of his service-connected disabilities, the issue of entitlement to a TDIU has been raised, is within the jurisdiction of the Board, and has been captioned above as an issue in appellate status. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are potentially relevant to the issue on appeal. Thus, any future consideration of this Veteran's case should take into account the existence of this electronic record. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. FINDING OF FACT Since the grant of service connection, the Veteran has had, at worst, Level I hearing in the right ear and Level I hearing in the left ear. CONCLUSION OF LAW The criteria for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran's claim for a higher rating for bilateral hearing loss arises from his disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice under this law 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 the claim. This duty includes assisting the Veteran in the procurement of service treatment records, pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records, private treatment records, lay statements, and VA examination reports have been obtained and considered. The Veteran was provided with a VA audiological examination in July 2007. Another examination was scheduled in September 2012, but the Veteran failed to appear. In October 2012, the Veteran reported that he received no notice of the scheduled examination by telephone or letter. Indeed, the claims file has no documentation showing that the Veteran was notified of the September 2012 examination. Thus, he was provided with another VA audiological examination in November 2012. The Board finds that these examinations are adequate for the purpose of evaluating the Veteran's service-connected bilateral hearing loss, as they include clinical interviews with the Veteran, review of the claims file, and physical examinations. 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). Further, in Martinak 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. In this case, the 2012 VA examination was conducted by a state-licensed audiologist, included the Maryland CNC test and a pure tone audiometry, and specifically addressed the functional effects of the Veteran's hearing loss on his daily activities. Thus, the Board finds that the examination is adequate. The Veteran has not asserted, nor does the record show, that his bilateral hearing loss has worsened in severity since the most recent examination in November 2012. As such, a new examination is not required. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). The Board finds that all relevant facts have been properly developed, and all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claims, and no further assistance to develop evidence is required. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis The Veteran's service-connected hearing loss disability is currently rated as noncompensably disabling. He seeks a higher rating. 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 (DCs) 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 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 the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The RO has rated the Veteran's service-connected bilateral hearing loss as noncompensable under the provisions of Diagnostic Code 6100 of the Schedule for Rating Disabilities. 38 C.F.R. § 4.85. The assignment of a disability rating for service-connected 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). 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, 4.87. 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. As an initial matter, the Board finds that neither exceptional pattern of hearing under 38 C.F.R. § 4.86 is present in any of the Veteran's audiograms of record; thus, that regulation is inapplicable. The record contains three audiograms dated during the appeal period. Pure tone threshold levels, in decibels, were as follows: January 2007 (private audiogram from Newport Audiology Centers) HERTZ 500 1000 2000 3000 4000 Pure tone threshold levels average Speech Discrimination RIGHT 35 40 40 40 45 41.25 96 LEFT 20 20 35 30 35 30 92 July 2007 (VA examination report) HERTZ 500 1000 2000 3000 4000 Pure tone threshold levels average Speech Discrimination RIGHT 25 25 30 25 40 30 96 LEFT 15 20 30 30 40 27.5 100 November 2012 (VA examination report) HERTZ 500 1000 2000 3000 4000 Pure tone threshold levels average Speech Discrimination RIGHT 25 20 25 25 25 23.75 96 LEFT 35 40 35 35 35 36.25 94 In every one of these audiograms, the results correspond to Level I hearing in both ears pursuant to Table VI. Level I hearing in both ears corresponds to a noncompensable evaluation pursuant to Table VII. Thus, each audiogram shows hearing loss at a noncompensable level. Based on the results of these audiological evaluations, and in the absence of any additional medical evidence showing a more severe hearing disability, a compensable evaluation is not warranted. The Board does not discount the difficulties the Veteran has with his auditory acuity. However, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. Lendenmann. Finally, the Board notes that service connection is also in effect for tinnitus, which is rated as 10 percent disabling. At his VA examinations and in lay statements, the Veteran mentioned ringing in his ears several times in support of his claim for a higher evaluation for hearing loss. However, symptoms related to service-connected tinnitus, including ringing in the ears, may not be considered while evaluating the service-connected hearing loss. See 38 C.F.R. § 4.14. The Board must avoid evaluating the same manifestation under different diagnoses. Id. Moreover, the Board notes that the Veteran has been assigned the maximum schedular evaluation for tinnitus and an appeal of that evaluation is not before the Board. As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine does not apply, and the claim for a compensable disability rating for bilateral hearing loss must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). III. Other considerations The Board has considered whether staged ratings under Hart are appropriate for the Veteran's service-connected bilateral hearing loss. The Board finds that his symptomatology has been stable throughout the appeal period. Therefore, staged ratings are not warranted. VA must also consider whether an extraschedular 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 function and daily activities. Martinak, 21 Vet. App. at 454-55. Audiologists' reports as to the effects of hearing loss on occupational functioning and daily activities can support consideration of an extraschedular evaluation. Id. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). At the 2007 VA examination, the Veteran reported difficulty hearing and understanding speech, especially in the presence of background noise. The VA examiner noted a functional impairment of difficulty following conversations and having to use his left ear more often than his right. He diagnosed mild bilateral sensorineural hearing loss. The 2012 VA examiner diagnosed normal hearing in the right ear and mixed hearing loss in the left ear. The examiner found that hearing loss does impact the ordinary conditions of daily life, including the ability to work, insofar as the Veteran has to use his left ear for phone activity and conversations, and changes his seat so his left ear is closer to the speaker. He has difficulty hearing on the phone, in groups, and in the presence of background noise. This is the extent of the functional impact of his hearing loss. The evidence reflects that the 2007 and 2012 examiners reviewed the claims file and considered the Veteran's reports that his hearing loss affected his ability to hear conversations in the presence of background noise, in groups, and on the phone. Thus, the Veteran's hearing loss is manifested by difficulty hearing speech. The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. Hence, the rating criteria contemplate the Veteran's symptomatology and referral for consideration of an extraschedular rating is not warranted. Thun. The Board acknowledges that the evidence is still being developed for the Veteran's inferred TDIU claim (discussed in the REMAND section below). However, as noted above, any impact on the Veteran's employment would need to be considered for extraschedular purposes only if the schedular criteria are inadequate to rate his service-connected disabilities. Id. at 118 ("[I]n cases regarding whether extraschedular referral is warranted, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule."). As the schedular ratings adequately contemplate the hearing loss symptomatology, referral for extraschedular consideration is not warranted and a remand of the issue decided herein is not required. ORDER An initial compensable rating for bilateral hearing loss is denied. REMAND While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claim. See 38 C.F.R. § 19.9 (2012). A TDIU is an element of all appeals for a higher rating. Rice, 22 Vet. App. 447. Entitlement to a TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. In his notice of disagreement and substantive appeal, the Veteran states that because he cannot hear to full capacity, "I am unable to perform my professional duties that are required of me." Thus the record suggests that the Veteran may be unemployable due, at least in part, to his service-connected hearing loss and an inferred claim for TDIU is raised. The Board notes that the Veteran has not been provided with VCAA notice of the requirements for a TDIU claim. Such should be accomplished on remand. Additionally, the Veteran should be asked to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran proper VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that advises him about what is needed to substantiate a claim for a TDIU. Ask him to fully complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 2. Thereafter, adjudicate the claim for a TDIU, undertaking any additional development that may be necessary, including obtaining a medical opinion addressing the Veteran's employability. If the claim remains denied, furnish the Veteran and his representative with a Supplemental Statement of the Case and provide them an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this remand is to ensure compliance with due process considerations. The Veteran 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 or by the Court 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). ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs