Citation Nr: 1327983 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 12-22 322 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to a compensable disability rating for bilateral hearing loss. 2. Entitlement to a disability rating in excess of 10 percent for residuals of a left eye injury other than mydriasis. 3. Entitlement to a disability rating in excess of 10 percent for mydriasis of the left eye. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran had active service from August 1952 to August 1955. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. In September 2010, the Veteran testified before a Decision Review Officer during a hearing held at the RO. A transcript of the hearing has been associated with the claims file. The record before the Board consists of the Veteran's paper claims file and an electronic file know as Virtual VA. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. The Veteran has no worse than Level I hearing impairment in both ears. 2. The residuals of a left eye injury are manifested by scar tissue in the left iris and mydriasis. 3. The residuals of a left eye injury are not manifested by incapacitating episodes, a visual field deficit, or visual acuity worse than 20/40. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012). 2. The criteria for a disability rating higher than 10 percent for residuals of a left eye injury other than mydriasis are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §4.79, Diagnostic Code 6009 (2012). 3. The criteria for a disability rating higher than 10 percent for mydriasis of the left eye are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.79, Diagnostic Code 6011 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in a letter mailed in October 2009, prior to the initial adjudication of the claims. The Board also finds that the duty to assist has also been met. The Veteran's service treatment records and post-service VA records have been obtained. There is no indication, nor has the Veteran alleged, that additional records relevant to his claims have not been obtained. He was also provided with VA examinations with respect to his claims in November 2009 and May 2012. The Board finds that the reports of these examinations are adequate for rating purposes. There is no indication that the Veteran's disabilities have increased in severity since the May 2012 examinations. The Board concludes that no further examinations are required. General Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the Veteran's disabilities. In this regard the Board notes that where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Bilateral Hearing Loss The Veteran claims that a compensable rating is warranted for his bilateral hearing loss. In support of his claim, he testified that he has difficulty understanding other people's speech. He also relayed that he uses hearing aids. The severity of a hearing loss disability is determined by comparisons of audiometric test results with specific criteria set forth in the Rating Schedule. 38 C.F.R. § 4.85. Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz. The audiometric test results are then translated into a numeric designation ranging from Level I to Level XI, in order to evaluate the degree of disability from bilateral service-connected defective hearing. 38 C.F.R. § 4.85. The rating criteria also provide for rating exceptional patterns of hearing impairment. See 38 C.F.R. § 4.86. If the puretone threshold is greater than 55 decibels at each of four specified frequencies, 1000 Hertz, 2000 Hertz, 3000 Hertz and 4000 Hertz, VA must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). If the puretone threshold is 30 decibels or less at 1000 Hertz and simultaneously 70 decibels or more at 2000 Hertz, VA must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next highest numeral for consideration. Each ear is evaluated separately. 38 C.F.R. § 4.86(b). By way of history, the RO granted service connection for the Veteran's bilateral hearing loss in a January 2007 rating decision. A noncompensable rating was assigned effective from April 2006. In September 2009, the Veteran filed the current claim for an increased disability rating. In November 2009, the Veteran underwent a VA audiological examination to assess the severity of his hearing loss disability. He reported that hearing in his left ear was deteriorating "somewhat." The examiner noted that the Veteran had undergone myringotomy with pressure equalization tube placement in the right ear one year prior. The authorized audiological evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 45 50 55 LEFT 25 30 30 40 50 The average pure tone thresholds at 1,000, 2,000, 3,000, and 4,000 Hertz were 46 decibels in the right ear and 38 decibels in the left ear. The report also notes speech recognition ability of 98 percent in both ears. These findings demonstrate that under Table VI of the Rating Schedule, the Veteran has Level I hearing impairment in both ears. He did not manifest an exceptional pattern of hearing impairment. See 38 C.F.R. § 4.85, Table VI; see also 38 C.F.R. § 4.86(a). Using Table VII, Level I hearing impairment in both ears results in a noncompensable evaluation for the Veteran's bilateral hearing impairment. See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. A May 2012 VA audiological examination report shows further assessment of the Veteran's bilateral hearing loss. The Veteran reported that his hearing loss had progressed. On the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 40 40 50 55 LEFT 25 25 30 40 45 The average puretone thresholds at 1,000, 2,000, 3,000, and 4,000 Hertz were 46 for the right ear and 35 for the left ear. Speech recognition scores were reported as 94 percent for the right ear and 98 percent for the left ear. Under 38 C.F.R. § 4.85, using Table VI, these findings correspond to Level I hearing impairment for both the right and left ears. The findings are not indicative of an exceptional pattern of hearing impairment. See 38 C.F.R. § 4.85, Table VI; see also 38 C.F.R. § 4.86(a). Using Table VII, Level I hearing impairment for both ears results in a noncompensable evaluation for the Veteran's hearing impairment. See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. The Board notes that the Court has held that, in addition to providing objective test results, a VA audiologist must fully describe the effects of a disability on occupational functioning and daily activities. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). With respect to daily activities and occupational functioning, the examiner noted that the Veteran reported that he had difficulty understanding normal conversation, especially in the presence of background noise. Based on the record, the Board finds that the schedular criteria for a compensable rating have not been met. As explained above, the examination results show that the Veteran does not have sufficient hearing impairment to warrant a compensable rating. In reaching this determination, the Board has considered the statements from the Veteran regarding his hearing loss disability. The Veteran is certainly competent to report his symptoms. See generally Barr v. Nicholson, 21 Vet. App. 303 (2007) (a Veteran is competent to testify as to the continuity of symptomatology capable of lay observation). However, to the extent that he has stated that his service-connected hearing loss warrants a higher evaluation and has provided lay statements describing the severity of his disability, the Board attaches greater probative weight to the clinical findings of skilled, unbiased professionals than to the Veteran's statements. Moreover, the assignment of disability evaluations based on hearing impairment is primarily based upon a mechanical application of the rating criteria, as explained and applied herein. Left Eye Disabilities Regarding these claims, the Veteran asserts that his service-connected left eye disabilities warrant ratings higher than the current assigned 10 percent ratings. The RO granted service connection for residuals of trauma of the left eye, identified as mydriasis, in an April 1976 rating decision and assigned a noncompensable rating for the disability. The RO later assigned a 10 percent rating for residuals of the left eye trauma effective from July 1997. In a January 2004 rating decision, the RO granted service connection for a separate left eye disability, which it classified as an unhealed injury, and assigned a 10 percent rating effective from February 2002. In September 2009, the Veteran filed the current claims for increased ratings for his left eye disabilities. The Veteran's unhealed left eye disability has been rated under Diagnostic Code 6009, and his mydriasis has been rated under Diagnostic Code 6011. Here, the Board notes that the rating criteria used to evaluate disabilities of the eyes were amended as of December 10, 2008, for all claims filed on or after such date. As the Veteran's claims were filed in September 2009, only the new rating criteria apply in the present case and consideration of prior regulations is not required. Under the criteria for evaluating diseases of the eye, Diagnostic Codes 6000 through 6009 (for the Veteran's unhealed left eye disability), in chronic form, are to be rated from 10 percent to 100 percent disabling for either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation. Under the General Rating Formula for Diagnostic Codes 6000 through 6009, a 10 percent rating is warranted with incapacitating episodes having a total duration of at least 1 week, but less than 2 weeks, during the past 12 months. A 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months. A 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months. A 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. 38 C.F.R. § 4.79, General Rating Formula for Diagnostic Codes 6000 through 6009, Note. The Veteran also has a separate 10 percent rating for residuals of left eye trauma, identified as mydriasis, under Diagnostic Code 6011. Under Diagnostic Code 6011, a 10 percent rating is assignable for retinal scars, atrophy, or irregularities, unilateral or bilateral, that are centrally located and that result in an irregular, duplicated, enlarged, or diminished image. 38 C.F.R. § 4.79. The 10 percent rating is the maximum rating available under Diagnostic Code 6011. Impairment of visual acuity is determined based on the best distant vision obtainable. 38 C.F.R. §§ 4.75, 4.76(b). A noncompensable rating is assigned when vision is at best 20/40 in both eyes; there is no rating for visual acuity better than that. 38 C.F.R. § 4.79. The Board highlights that service connection is not in effect for a right eye disorder. If visual impairment of only one eye is service connected, the visual acuity of the other eye will be considered to be 20/40 for purposes of evaluating the service-connected visual impairment. 38 C.F.R. § 4.75(c); see also 38 C.F.R. § 3.383(a). The Board also recognizes that the medical evidence shows an additional diagnosis of bilateral cataract. However, service connection has not been awarded for this disorder. Thus, the Veteran's cataracts are not discussed in the analysis below. Turning to the merits of the claims, VA treatment records show the assessment of the Veteran's left eye disabilities. A June 2009 VA treatment record documents the Veteran's report of stable distance vision bilaterally, some difficulty with near vision for both eyes, and tearing that was worse for the left eye with cold and when outside. The Veteran also reported experiencing floaters and left eye pain occasionally. He denied diplopia. The examiner noted that the Veteran's history was significant for photophobia secondary to traumatic iris sphincter damage of the left eye. He was also noted to have mild angle recession of the left eye secondary to trauma, with normal intraocular pressure and healthy optic nerve heads. His uncorrected visual acuity in the left eye for distance was 20/25-2 and for near vision was 20/25-1. His left pupil size in light was 3 mm and without any afferent pupillary defect. A subsequent June 2009 record shows relevant diagnoses of mild angle recession without glaucoma and trace epiretinal membrane for the left eye. A November 2009 VA eye examination report reflects the Veteran's history of atrophy/scarring of the left iris and chorioretinal scar in the left eye, both consistent with a history of blunt trauma during service. There was no history of incapacitating episodes due to eye disease. The Veteran reported his symptoms as eye strain/sensitivity to light in general and blurring. He denied experiencing diplopia. The physical examination revealed a diffuse, large chorioretinal scar in the left eye. The Veteran's left eye corrected and uncorrected visual acuity for distance was 20/25. Discoria and atrophy were noted for the left iris. Based on the examination findings, the examiner provided relevant diagnoses of discoria disfigurement of the left iris, large chorioretinal scar of the left eye, and left eye photophobia. The examiner determined that the Veteran's left eye disorders did not affect the Veteran's daily activities or usual occupation. The Veteran reported that he was retired due to eligibility by age or duration of work. The Veteran testified as to his left eye symptomatology during the September 2010 hearing. He reported experiencing occasional periods of worsening vision in his left eye, episodes of spots and floaters occurring monthly or less often, and pain and soreness. He described having a sensitivity to light, and he stated that if he did not wear sunglasses in the sunlight, his eye would water and feel uncomfortable. His episodes of eye watering reportedly occurred frequently and were often of a duration to where it affected his daily activities. The Veteran stated that these episodes were associated with an increase in his ocular pressure and that it had impaired his vision for driving on occasion. The Veteran's representative asserted that when the Veteran experienced eye watering while driving, he was incapacitated due to the danger posed by his impaired vision. The Veteran also testified to experiencing rare episodes of blurred vision and double vision in his affected eye. He denied episodes of temporary vision loss in his left eye. A May 2012 VA eye examination report shows further assessment of the Veteran's left eye disabilities. He reported experiencing daily eye watering that could be triggered by a variation in temperature and bright light. He denied any other symptoms with exposure to bright light. The physical examination revealed left eye uncorrected and corrected visual acuity for distance of 20/40 or better. His left pupil measured 4 mm in diameter, and his left pupil response was sluggish as compared to the right pupil. The examiner noted the presence of scarring or disfigurement due to a 1 mm difference in the pupil size of his left eye as compared to his right eye. He did not have an anatomical loss, light perception only, extremely poor vision, or blindness for the left eye. The examination also revealed a trace epiretinal membrane for the left eye. The Veteran reported experiencing occasional or "rare" diplopia, but this was not present during the examination. There was no defect in the Veteran's visual field. The examiner determined that the Veteran did not have any incapacitating episodes due to an eye condition during the previous twelve months. The Veteran eye disorders did not impact his ability to work. The examiner acknowledged the Veteran's report that his vision was worse, and the examiner noted that the Veteran's bilateral vision had worsened as compared to 2009. The examiner determined, however, that the Veteran's vision was worse as a result of his age-related, bilateral cataracts. The Veteran did not have traumatic cataracts, but his trauma resulted in a mild angle-regression without glaucoma and anisocoria for the left eye. According to the examiner, the Veteran's anisocoria and mild mydriasis were consistent with increased photosensitivity. His eye watering, however, was not attributable to photosensitivity based on the Veteran's denial of any other symptoms associated with his eye watering. The examiner also noted the Veteran's report of floaters, which the examiner determined were a normal, age-related development and not related to trauma. Lastly, the examiner acknowledged the Veteran's report of diplopia occurred rarely. Although not present during the examination, the examiner determined that even if his diplopia was present during the assessment, there was no ocular motility restriction or history of equal ocular movement trauma. Thus, the examiner determined that the Veteran's diplopia would not be related to his in-service left eye trauma. Given the foregoing, a disability in excess of 10 percent is not warranted for either disability Regarding the residuals evaluated under Diagnostic Code 6009, the evidence of record does not show that the Veteran has been prescribed bed rest by a physician during these episodes. His left eye symptomatology primarily includes episodes of vision impairment or blurred vision, photosensitivity, eye watering, eye pain, and soreness. Although the Veteran's representative argues that the Veteran is incapacitated while driving, there is no evidence of record suggesting that the Veteran has required bed rest because of the service-connected disability. Thus, the next-higher, 20 percent rating is not warranted under Diagnostic Code 6009. Similarly, a rating higher than 10 percent is also not warranted for the Veteran's additional service-connected left eye disability, residuals of trauma identified as mydriasis, under Diagnostic Code 6011. As previously noted, this diagnostic code only provides a maximum 10 percent rating for retinal scars, atrophy, or irregularities. Thus, the Veteran is already in receipt of the maximum rating based on the applicable rating criteria and a higher rating may not be assigned under this diagnostic code. The Board has also considered whether higher ratings may be assigned for either of the Veteran's left eye disabilities based on impaired visual acuity or visual field. The objective evidence does not show that the Veteran has any impairments of his visual field. His left eye corrected vision has been no worse than 20/40, which does not warrant a compensable rating under the applicable rating criteria for impaired visual acuity. See 38 C.F.R. §§ 4.75, 4.76(b), 4.79. Thus, the evidence fails to show that ratings higher than 10 percent are warranted based on visual acuity or visual field impairment. The Board has also considered whether there are any other potentially applicable diagnostic codes pursuant to which higher ratings for the Veteran's service-connected left eye disabilities could be assigned, but has found none. Here, the Board acknowledges the Veteran's reports of photosensitivity, eye watering and diplopia. However, this symptomatology does not warrant ratings higher than what has already been assigned and/or are contemplated in the currently assigned 10 percent evaluations. As for his reports of diplopia, the objective evidence of record does not show that this symptomatology is attributable to his service-connected left eye disabilities, as most recently opined by the May 2012 examiner. Parenthetically, the Board notes that the rating criteria for diplopia under Diagnostic 6090 only provides for a noncompensable rating for diplopia that is occasional. See Diagnostic Code 6090, Note. Thus, higher ratings are not warranted under any other diagnostic code. Other Considerations As for all of the Veteran's increased rating claims, consideration has been given to assigning staged ratings; however, at no time during the period in question have the disabilities warranted higher schedular ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered the doctrine of reasonable doubt in reaching the above determinations; however, as the preponderance of the evidence is against the claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has also considered whether the Veteran's claims should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the manifestations of the Veteran's claimed disabilities are contemplated by the schedular criteria. With respect to the hearing loss, the Board acknowledges that the Veteran has difficulty understanding normal conversation, especially in the presence of background noise results. Never the less, his level of hearing impairment is specifically contemplated by the schedular criteria and the Board has no reason to believe that the average industrial impairment from his level of hearing impairment would be to a compensable degree. Therefore, the Board has determined that referral of the claims for extra-schedular consideration is not in order. Finally, although the Veteran has submitted evidence of his medical disabilities, and made claims for the highest ratings possible, he has not submitted evidence of unemployability, or claimed to be unemployable due to the disabilities. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to his service-connected hearing loss and left eye disabilities has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2011). ORDER A compensable disability rating for bilateral hearing loss is denied. A disability rating higher than 10 percent for residuals of a left eye injury other than mydriasis is denied. A disability rating higher than 10 percent for mydriasis of the left eye is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs