Citation Nr: 1328083	
Decision Date: 09/03/13    Archive Date: 09/10/13

DOCKET NO.  09-22 262	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, Idaho


THE ISSUES

1.  Entitlement to an initial compensable disability rating for bilateral hearing loss prior to June 9, 2010.

2.  Entitlement to an initial compensable disability rating for bilateral hearing loss from June 9, 2010 through September 20, 2012. 

3.  Entitlement to an initial disability rating in excess of 20 percent for bilateral hearing loss from September 21, 2012.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

The Veteran and R.B.
ATTORNEY FOR THE BOARD

Scott Shoreman, Counsel


INTRODUCTION

The Veteran served on active duty from June 1970 to December 1971

This matter comes before the Board of Veterans' Appeals (Board) from an October 2008 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for bilateral hearing loss and assigned a noncompensable (0 percent) disability rating.  In a January 2013 rating decision, the evaluation for bilateral hearing loss was increased to 20 percent effective September 21, 2012.

In June 2010, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing at the above VARO; a transcript is of record.

This claim was previously before the Board in August 2012, at which time the Board remanded it for additional development.  The requested development has been completed, and the claim is properly before the Board for appellate consideration.

In the present decision, the Board is granting a disability rating of 10 percent for bilateral hearing loss as of June 9, 2010.  Therefore, to assist with stage rating clarity, the issues have been recharacterized as listed above.


FINDINGS OF FACT

1.  Prior to June 9, 2010, the Veteran had, at worst, level II hearing in the right ear and Level III hearing in the left ear.

2.  From June 9, 2010 through September 20, 2012, the Veteran had, at worst, level II hearing in the right ear and level VI hearing in the left ear.

3.  Since September 21, 2012, the Veteran has had, at worst, level IV hearing in the right ear and level VI hearing in the left ear.


CONCLUSIONS OF LAW

1.  The criteria for an initial compensable disability rating for bilateral hearing loss prior to June 9, 2010 have not been met.  38 U.S.C.A. § 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.85, 4.86, Diagnostic Code (DC) 6100 (2012).

2.   The criteria for an initial 10 percent disability rating for bilateral hearing loss from June 9, 2010 through September 20, 2012 have been met.  38 U.S.C.A. § 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.85, 4.86, Diagnostic Code (DC) 6100 (2012).

3.  The criteria for an initial disability rating in excess of 20 percent for bilateral hearing loss from September 21, 2012 have not been met.  38 U.S.C.A. § 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.85, 4.86, Diagnostic Code (DC) 6100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA has a duty to notify and assist the Veteran in substantiating his claims for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Regarding VA's duty to notify, the claim for a higher rating for bilateral hearing loss arose from disagreement with the initial evaluation assigned following the grant of service connection.  Courts have held that 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 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 records and private medical records are in the claims file.  The Veteran has not indicated there are any additional records that VA should seek to obtain on his behalf. 

The Veteran was provided with audiologic examinations in October 2008 and September 2012.  The examination reports are adequate for evaluation purposes because the examiners conducted clinical evaluations, reviewed the Veteran's medical history, and described the hearing loss in sufficient detail so that the Board's evaluation is an informed determination.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). 

Further, in Martinak v. Nicholson, 21 Vet. App. 447 (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.  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.  Id.  In this case, the examiners addressed the effect of the Veteran's hearing loss on his daily activities and his employment.  Thus, the Board finds that the examinations were adequate.

The Veteran has not alleged, nor does the record show, that his service-connected hearing loss has worsened in severity since the most recent examination in September 2012.  As such, a new examination is not required.  See Palczewski v. Nicholson, 21 Vet. App. 174 (2007).  All reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required.

Finally, this case was remanded for additional development in August 2012.  There has been substantial compliance with the remand directives.

Analysis

The Veteran seeks an initial compensable rating for bilateral hearing loss prior to September 21, 2012 and an evaluation in excess of 20 percent from September 21, 2012.

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; 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 ratings" is required.  Fenderson v. West, 12 Vet. App. 119, 126 (1999). 

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.
  
When the evidence is determined to be competent, the Board must then determine whether the evidence is credible.  "Credible evidence" is that which is plausible or capable of being believed.  See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).  If the evidence is not credible, the evidence has no probative value. 

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 affect on the Veteran's occupational function and daily activities.  Id. 

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.

The Veteran underwent audiology testing at private treatment in May 2008.  Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
50
65
n/a
80
LEFT
45
50
70
75
75

The report does not indicate speech discrimination testing in accordance with the Maryland CNC.  In addition, the report depicts the results in the form of a graph.  The Board is the finder of fact and may interpret the evidence presented when the provided graphical representation is sufficiently clear to permit the proper interpretation.  See Kelly v. Brown, 7 Vet. App. 471, 472 (1995).  Given the lack of a measurement at 3000 Hertz for the right ear, the graph is not sufficiently clear to permit a proper interpretation.  Therefore, the May 2008 audiogram results cannot be used for adjudicative purposes.  See 38 C.F.R. § 3.385(c).

The Veteran had a VA examination in October 2008 at which he reported difficulty hearing conversations, women, the television, and on the telephone.  On the audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
40
60
65
75
LEFT
30
35
65
75
75

Puretone threshold levels averaged 60 decibels for the right ear and 62.5 decibels for his left ear.  Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 84 percent in the left ear.  The examiner diagnosed the Veteran with bilateral normal to severe sensorineural hearing loss.

These results correspond to Level II hearing on the right and Level III hearing on the left pursuant to Table VI. The results further correspond to a noncompensable evaluation pursuant to Table VII.  A pattern of exceptional hearing loss under 38 C.F.R. § 4.86 was not demonstrated.

In a June 2009 statement the Veteran wrote that he did not feel that the hearing test was accurate because the examiner gave examples of words that would be used and then used those same words in the hearing test.

The Veteran underwent private audiological testing on June 9, 2010.  Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
50
55
75
80
LEFT
35
55
80
80
85

Speech audiometry revealed speech recognition ability of 92 percent in the right ear at 70 decibels and 92 percent in the left ear at 80 decibels.  The report does not indicate that speech discrimination testing was in accordance with the Maryland CNC. However, the Veteran's bilateral speech discrimination scores of 92 percent was in the highest category under Table VI.  Based on the hearing thresholds, the hearing for the right ear could not be better than level II.  Exceptional patterns of hearing impairment under 38 C.F.R. § 4.86 do not apply for the right ear.

It is not entirely clear from the graph whether the threshold at 1000 decibels was marked 50 or 55 Hertz. Given that the mark on the chart is positioned on the side of the line for 50 that indicates a threshold greater than 50, giving the benefit of the doubt to the Veteran, the Board finds that the threshold at 1000 Hz was 55 decibels.  The left ear therefore demonstrates an exceptional pattern of hearing impairment because the puretone threshold at each of the four specified frequencies is 55 decibels or more.  See 38 C.F.R. § 4.86(a).  Applying Table VIa, the Veteran has level VI hearing in the left ear.  He would have level II hearing under Table VI were the speech discrimination score used.  The Board therefore will use Table VIa for the Veteran's left ear hearing level.  The results from both ears correspond to a 10 percent evaluation pursuant to Table VII.

The audiologist who conducted the June 2010 audiological testing wrote in July 2010 that the testing revealed bilateral moderate to severe sensorineural hearing loss.  It was noted that a normal voice at conversational level is at 45 dB and that the Veteran needs 80 dB to hear comfortably.  Therefore, the Veteran would struggle to hear most voices in any listening situation without amplification.  Situations that caused difficulty also included listening to the radio or television and talking on the telephone.

The Veteran testified at the June 2010 Board hearing that he felt that the speech discrimination testing from the October 2008 VA examination was inadequate because the examiner gave examples of words that would be used and then used those same words in the hearing test.  He further testified that he had difficulty hearing the television and high pitched voices.

The Veteran had another VA examination on September 21, 2012.  He reported that his hearing loss made it more difficult for him to understand general conversation and to hear women and his grandchildren on the telephone.  He would turn up the volume on the television to a level that was loud enough to make others uncomfortable.  On the audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
45
65
70
80
LEFT
35
45
70
80
80

Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 70 percent in the left ear.  The examiner diagnosed the Veteran with bilateral sensorineural hearing loss in the frequency range of 500 to 4000 Hertz.  

These results correspond to Level IV hearing on the right and Level VI hearing on the left pursuant to Table VI.  The results further correspond to a 20 percent evaluation pursuant to Table VII.  A pattern of exceptional hearing loss under 38 C.F.R. § 4.86 was not demonstrated.

Based on the results of the audiological evaluations discussed above, and in the absence of any additional medical evidence showing a more severe hearing disability, the Veteran's hearing loss did not approximate the criteria for a compensable evaluation prior to June 9, 2010, the criteria for an evaluation greater than 10 percent from June 9, 2010 through September 20, 2012, or the criteria for an evaluation greater than 20 percent from September 21, 2012.  As discussed above, the October 2008 VA examination indicated that the Veteran is not entitled to a compensable evaluation.  The Veteran has argued that the speech discrimination results from the examination were invalid because the examiner mentioned some of the words in advance.  However, the speech recognition scores show that there were still words that he missed and nothing from the examination report indicates that that proper procedures were not followed.  Although the Board does not discount the difficulties the Veteran has with his auditory acuity, it has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  Thus, the assignment of a ratings greater than those indicated above on a schedular basis are not warranted.

A review of the record also fails to show that a referral for extraschedular consideration is warranted.  In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321.  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). 

In this case, the Board finds that the rating criteria contemplate the Veteran's hearing loss disability for entire duration of this appeal.  The Veteran's hearing loss disability is productive of decreased hearing acuity, and this manifestation is contemplated in the respective applicable rating criteria.  In Martinak, the Court noted that unlike the rating schedule for hearing loss, the extraschedular provisions do not rely exclusively on objective test results to determine whether referral for an extraschedular rating was warranted.  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.  Id. at 455.  As discussed above, the October 2008 and September 2012 VA examination reports contain detailed descriptions of the Veteran's subjective complaints and impairments in functioning due to hearing loss.  While the Board has considered this evidence in light of Martinak and the provisions of 38 C.F.R. § 3.321(b)(1) , the Board does not find that the Veteran has described functional effects that are "exceptional" or not otherwise contemplated by the assigned evaluation.  Rather, his description of difficulties with hearing is consistent with the degree of disability addressed by such evaluation.  Referral for an extraschedular rating is not warranted.

The Board has also contemplated whether consideration of a total disability rating based on individual unemployability (TDIU) is warranted.  The Court has held that entitlement to a TDIU is an element of all appeals for a higher rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  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.  As there is no evidence of unemployability due to the Veteran's hearing loss disability, the question of entitlement to a TDIU is not raised.

Finally, in light of the holding in Fenderson, supra, the Board has considered whether the Veteran is entitled to additional "staged" ratings for his service-connected hearing loss, as the Court indicated can be done in this type of case.  Based upon the record, we find that at no time during the claims period has the disability on appeal been more disabling than as currently rated under the present decision of the Board. 

  
ORDER

Entitlement to an initial compensable disability rating for bilateral hearing loss prior to June 9, 2010 is denied.

Entitlement to an initial 10 percent disability rating, and no greater, for bilateral hearing loss from June 9, 2010 through September 20, 2012 is granted.

Entitlement to an initial disability rating in excess of 20 percent for bilateral hearing loss from September 21, 2012 is denied.




____________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs