Citation Nr: 1328008	
Decision Date: 09/03/13    Archive Date: 09/10/13

DOCKET NO.  13-03 383	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to service connection for right ear hearing loss.

2.  Entitlement to an initial compensable evaluation for left ear hearing loss.


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


ATTORNEY FOR THE BOARD

E. D. Anderson, Counsel



INTRODUCTION

The Veteran served on active duty from February 1987 to February 1990.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. 


FINDINGS OF FACT

1.  The Veteran does not have auditory thresholds in the right ear in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz of 40 decibels or greater; auditory thresholds in the right ear for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz of 26 decibels or greater; or speech discrimination scores using the Maryland CNC Test of less than 94 percent in the right ear  

2.  The Veteran had an average puretone threshold in the left ear of 30 decibels and a speech discrimination score of 92 percent.


CONCLUSIONS OF LAW

1.  The criteria for entitlement to service connection for right ear hearing loss have not been met.  38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012).  

2.  The criteria for an initial compensable evaluation for left ear hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.85 Diagnostic Code 6100 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has reviewed all of the evidence in the claims folder.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims.  

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 appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence.  

Service Connection

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012).  In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).  

However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013).  For disabilities that are not listed as chronic the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d).  Sensorineural hearing loss is subject to service connection based upon continuity of symptomatology as an "organic disease of the nervous system" under 38 C.F.R. § 3.309(a).  

Certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service.  See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). 

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2012). 

A "hearing loss" disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria.  38 C.F.R. § 3.385 (2012).  For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  Id.

The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  

The Veteran's DD-214 indicates that he served as a cannon crewman, and he has reported noise exposure from "big guns".  He is considered competent to relate a history of noise exposure during service.  See 38 C.F.R. § 3.159(a)(2).

Service treatment records show that on the Veteran's enlistment examination in January 1987, puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
0
0
10
LEFT
5
5
0
5
0

The Veteran was provided annual hearing evaluations.  At a June 1988 examination, 

puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
10
30
35
0
LEFT
5
10
5
10
10

At a June 1989 examination, puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
10
0
5
LEFT
5
5
5
0
0

The Veteran was not afforded an examination at separation from service.   

Post-service, there is no medical evidence of a hearing loss disability for more than a decade after service, until the Veteran filed his current claim in July 2010.  

In March 2011, the Veteran was afforded a VA examination.  At that time, the Veteran complained of bilateral hearing loss and tinnitus.  He stated that he had to turn up the television very loud, and often had to ask others to repeat themselves because he had difficulty understanding speech.

He reported that in the Army, he was primarily an assistant gunner on a Howitzer and he had to "do a lot of shooting the big guns."  He described noise exposure from pistols, rifles, automatic weapons, aircraft engines, diesel engines, heavy equipment, explosives, power tools, and all terrain vehicles.  Hearing protection was available and utilized.  He reported noticing a change in his hearing during his military service, but did not know what to do about it.  The Veteran also reported an extensive history of occupational noise exposure, including working in a tire factory, working in a woodgrain mill, and working on loading docks.  He also noted that he listens to amplified music recreationally.  

Puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
15
20
35
LEFT
20
20
15
40
45

Speech recognition score on the Maryland CNC test were 94 percent in the right ear and 92 percent in the left ear.  Thus, the Veteran met the criteria for a hearing loss disability under 38 C.F.R. § 3.385 in the left ear, but not in the right.  

While the Board concedes that the Veteran had noise exposure in service and acknowledges that the Veteran has reported subjective complaints of hearing loss in both his ears, at this time, audiological testing does not show sufficient hearing impairment in the right ear to be considered a disability for VA purposes.  It is important for the Veteran to understand that service connection for a hearing loss disability requires more than just proving that he was exposed to loud noise in service.  Under 38 U.S.C.A. § 1131, a claimant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998).  

VA regulations set forth very specific criteria identifying what is considered a hearing loss disability for which compensation can be provided.  For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability only when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  See 38 C.F.R. § 3.385.  The Veteran's puretone thresholds in the right ear do not meet this criteria.  Accordingly, regardless of the Veteran's subjective complaints of hearing loss or the degree of the Veteran's in-service noise exposure, entitlement to service connection for right ear hearing loss cannot legally be granted, as the Veteran does not have a current hearing loss disability in the right ear for VA purposes.  

Increased Rating

Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R., Part 4 (2012).  Separate diagnostic codes identify the various disabilities.  38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition.  38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work.  38 C.F.R. § 4.7 provides that, 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.

An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment.  38 C.F.R. § 4.10 (2012).

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases.  38 C.F.R. § 4.21.  Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

In deciding the Veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period.  In Fenderson, the U.S. Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder.  In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  Id. at 126.  Hart appears to extend Fenderson to all increased rating claims.

The Veteran was originally granted service connection for left ear hearing loss in the May 2011 rating decision and assigned an initial non-compensable evaluation, which he timely appealed.  

Evaluations of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz.  38 C.F.R. § 4.85, Diagnostic Code 6100.  To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI.  Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters.  Id.  Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear.  Id.  

If impaired hearing is service connected in only one ear, the impairment in both ears will be considered in rating the disability if the impairment in the service-connected ear is to a degree of 10 percent or more and the impairment in the nonservice-connected ear qualifies as a disability under 38 C.F.R. § 3.385.  38 C.F.R. § 3.383 (2012).  Otherwise, the nonservice-connected ear will be assigned a Roman numeral designation for hearing impairment of I.  38 C.F.R. § 4.85(f). 

Provisions for evaluating exceptional patterns of hearing impairment are as follows. 

(a) When the puretone thresholds at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz  ) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  Each ear will be evaluated separately. 

(b) When the puretone thresholds are 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral; the numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86. 

Of record are results from a VA compensation examination in March 2011.  

Puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
15
20
35
LEFT
20
20
15
40
45

The average puretone threshold in the right ear was 20 decibels and the average puretone threshold in the left ear was 30 decibels.  Speech recognition score on the Maryland CNC test revealed speech recognition of 94 percent in the right ear and 92 percent in the left ear.  These results show that the Veteran does not have exceptional hearing loss in the left ear as contemplated in 38 C.F.R. § 4.86.  

Application of 38 C.F.R. § 4.85 Table VI to the March 2011 measurements results in assignment of Roman Numeral I to the right (nonservice-connected) ear and Roman Numeral I to the left ear, for the purpose of determining a disability rating.  A 0 percent rating is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row I with column I.

The March 2011 audiological test results do not provide for assigning a compensable disability rating for the Veteran's bilateral hearing loss.  

In Martinak v. Nicholson, 21 Vet. App. 447 (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.  Martinak, 21 Vet. App. at 455.  Here, the March 2011 VA examiner did this, noting that the Veteran reported having to turn the television up loud and ask others to repeat themselves because he has difficulty hearing speech.  

Because of the Veteran's assertion that his left ear hearing loss disability is not adequately compensated under the schedular rating criteria, the Board has also considered whether an extraschedular evaluation is warranted.

To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment.  38 C.F.R. § 3.321(b)(1) (2012).

The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards.  The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R.  § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations.  Floyd v. Brown, 9 Vet. App. 88 (1996).  The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual.  Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology.  Id. at 115.  If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops.  Id.

If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 116.  If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating.  Id.

In this case, it does not appear that the Veteran has an "exceptional or unusual" disability; he merely disagrees with the assigned evaluation for his level of impairment.  In other words, he does not have any symptoms from his service-connected disorder that are unusual or are different from those contemplated by the schedular criteria.  The available schedular evaluations for that service-connected disability are adequate.  Referral for extraschedular consideration is not warranted.  See VAOPGCPREC 6-96.  Further inquiry into extraschedular consideration is not required.  See Thun, supra.   

VA audiological test results do not support assignment of a compensable disability rating for the Veteran's left ear hearing loss, and the Board finds that the objective results of audiological testing have greater probative value than the Veteran's subjective assessment of his hearing loss disability.  

For all the above reasons, entitlement to a compensable disability rating for service-connected left ear hearing loss is denied.  The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012).

The Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from 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.  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  

The Board notes that in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the Court clarified VA's notice obligations in increased rating claims.  The Federal Circuit recently reversed the Veterans Court's decision in Vazquez-Flores, finding that VA is not required to tailor § 5103(a) notice to individual Veterans or to notify them that they may present evidence showing the effect that worsening of a service-connected disability has on their employment and daily life for proper claims adjudication.  For an increased rating claim, section § 5103(a) now requires that the Secretary notify claimants generally that, to substantiate a claim, they must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability.  See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd sub. nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that notice specific to individual Veterans is no longer required in increased compensation claims).  

The appeal for a higher initial rating for left ear hearing loss originates, however, from the grant of service connection for this disability.  Consequently, Vazquez-Flores is inapplicable, as a disagreement with an initial rating assigned for a disability following a claim for service connection is part of the original claim and technically not a claim for an increased rating.  See Fenderson v. West, 12 Vet. App. 119, 125 (1999).   

Here, the VCAA duty to notify was satisfied by a letter sent to the Veteran in July 2010.  This letter informed the Veteran of what evidence was required to substantiate his claims, as well as of VA and the Veteran's respective duties for obtaining evidence.  The Veteran was also informed of how VA assigns disability ratings and effective dates.  

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 medical records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  

The RO has obtained the Veteran's service treatment records, as well as VA treatment records.  The appellant was afforded a VA medical examination in March 2011.  This examination is based upon review of the claims folder, and thoroughly discusses the nature and severity of the Veteran's disability as well as the functional impairments resulting therefrom.  This examination report is adequate for rating purposes.  See 38 C.F.R. § 4.2; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one).  Since this examination, there is no lay or medical evidence suggesting an increased severity of disability.  As such, additional examination is not warranted.  VAOPGCPREC 11-95 (Apr. 7, 1995).  

Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).


ORDER

Entitlement to service connection for right ear hearing loss is denied.

Entitlement to an initial compensable evaluation for left ear hearing loss is denied.  



____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs