Citation Nr: 1328176	
Decision Date: 09/04/13    Archive Date: 09/10/13

DOCKET NO.  07-34 130	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida



THE ISSUE

Entitlement to a compensable rating for left ear hearing loss.  



REPRESENTATION

Appellant represented by:	The American Legion



ATTORNEY FOR THE BOARD

R. Giannecchini, Counsel  



INTRODUCTION

The Veteran had active military service from December 1961 to December 1965.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  In that decision, the RO declined to reopen a claim for service connection for right ear hearing loss, continued a 10 percent disability evaluation for left ear tinnitus, and also continued a noncompensable rating for left ear hearing loss.  The Veteran filed a notice of disagreement (NOD) to all three issues and the RO issued the Veteran a statement of the case (SOC) in October 2007.  

Of note, in his October 2007 substantive appeal (VA Form 9), the Veteran limited his appeal, noting that he was only pursuing "service connected hearing loss."  The Veteran is service connected for left ear hearing loss only.  In a July 2011 Informal Hearing Presentation (IHP), the Veteran's representative specified that the issue on appeal was entitlement to "increased rating for hearing loss."  In its October 2011 remand, the Board identified the issue on appeal as "Entitlement to an increased evaluation for left ear hearing loss, currently evaluated as zero percent disabling."  The Board also discussed the Veteran's VA Form 9 and the July 2011 IHP in the introduction section of the remand.  

Following the development requested by the Board, the RO issued a January 2012 supplemental statement of the case (SSOC).  The Veteran's representative, in a January 2012 VA Form 646 (Statement of Accredited Representative in Appealed Case), continued to identify the issue on appeal as an increased rating for left ear hearing loss.  Prior to consideration of the Veteran's appeal by the Board, the Veteran's representative was again allowed an opportunity to present argument in support of the Veteran's appeal.  In an August 2013 IHP, the Veteran's representative argued that the issue of service connection for right ear hearing loss remained on appeal.  In particular, the August 2013 IHP noted that, 

. . . the July 2011 IHP merely listed a single issue and did not specifically discuss the ambiguity of the VA Form 9, the aforementioned October 31, 200[6] statement, or the November 2007 Certification of Appeal.  Simply put, the July 2011 IHP failed to clarify the issues on appeal.  

Here, the October 2007 VA Form 9 made it clear that the Veteran was not choosing to appeal all three issues listed in the statement of the case.  The Veteran's representative, following his review of the claims file, identified what the Veteran was appealing.  The Board finds persuasive that a copy of its October 2011 remand was sent to both the Veteran and his representative.  At no time prior to the August 2013 IHP was a challenge raised by either the Veteran or his representative as to the Board's characterization of the issue on appeal.  

While the Board finds that the Veteran's claim for right ear hearing loss was not perfected for appeal based on the October 2007 VA Form 9, nonetheless, the issue could still be perfected if either the Veteran or his representative submitted any document or correspondence within 60 days of the October 2007 SOC that could be construed as a substantive appeal.  See 38 C.F.R. § 20.302(b) (2012).  The Board's review of the claims file does not reflect any document or correspondence from the Veteran or his representative received within 60 days of the October 2007 SOC that may be liberally construed as a substantive appeal.  Accepting the August 2013 IHP as an attempt to file a substantive appeal, the document is untimely as it was received more than five years after the October 2007 SOC.  Id.  

The Board accepts the August 2013 IHP as an application to reopen the previously denied claim of service connection for right ear hearing loss.  As the Board does not currently have jurisdiction over this matter, it is referred to the RO for appropriate action.  




FINDING OF FACT

Left ear hearing loss has been manifested by no worse than Level VII hearing impairment.  


CONCLUSION OF LAW

The criteria for a compensable evaluation for left ear hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

In a June 2006 letter, the agency of original jurisdiction (AOJ) notified the Veteran of information and evidence necessary to substantiate his claim for a compensable rating for left ear hearing loss.  The Veteran was also notified of the information and evidence that VA would seek to provide and the information and evidence that he was expected to provide.  In the June 2006 letter, the Veteran was also informed of the process by which initial disability ratings and effective dates are assigned.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  Therefore, the AOJ has satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012).  

Furthermore, VA has done everything reasonably possible to assist the Veteran with respect to his claim on appeal in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c).  The Veteran's VA treatment records are associated with the claims file, and the Veteran has submitted private medical evidence in support of his claim in the form of an October 2006 audiogram and statement from a private audiologist.  The Veteran has also been provided a VA audiological examination, dated in October 2011, the report of which is associated with the claims file.  The Board finds the examination report contains sufficient evidence by which to evaluate the Veteran's claim in the context of the rating criteria.  Furthermore, the VA examiner elicited information from the Veteran concerning the functional effects of his left ear hearing loss.  See Martinak v. Nicholson, 21 Vet. App. 447 (2007).  

Also, while it does not appear that the Board's October 2011 remand instructions were absolutely complied with, the Veteran is not prejudiced by the Board deciding his claim at this time.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd sub nom. Dyment v. Principi, 287 F.3d 1377 (Fed.Cir.2002) (noting compliance with a remand order requires substantial compliance and not absolute compliance).  In this regard, the Board's October 2011 remand instructions requested that the Veteran's claims file and a copy of the Board's remand order be provided to the examiner for his or her review.  In the October 2011 VA audiological questionnaire (disability benefits questionnaire or DBQ), the examiner noted that the claims file was not available for review.  Nonetheless, the examiner references language from the Board's remand action paragraphs contained in the AOJ's Compensation and Pension (C&P) Service examination inquiry, which electronically scheduled the requested VA audiological examination.  In addition, VA treatment records were available and reviewed by the examiner.  The Board finds that the examiner had sufficient evidence of the Veteran's clinical history to conduct an adequate examination.  

Furthermore, the VA examiner's failure to review the claims file would not change the objective and dispositive findings made during the October 2011 VA audiological testing.  See e.g., Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997).  Therefore, additional development to allow the October 2011 VA audiologist to review the claims file, as per the Board's remand request, would serve no useful purpose.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran should be avoided); Soyini v. Derwinski, 1 Vet. App. 540 (1991).  

Otherwise, the Veteran and his representative have submitted arguments in support of the claim on appeal.  Neither the Veteran 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 appeal that has not been obtained.  Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of this increased rating claim.  

II. Analysis

Disability evaluations are determined by comparing a veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2011).  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 C.F.R. § 4.3.  The Veteran's entire history is reviewed when making disability evaluations.  See generally 38 C.F.R. § 4.1 (2011); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  

When a claimant is awarded service connection and assigned a disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found.  Such separate disability ratings are known as staged ratings.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned).  The United States Court of Appeals for Veterans Claims (Court) extended entitlement to staged ratings to claims for increased disability ratings, as is the case here, where the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505, 511 (2007).

The assigned evaluation for hearing loss is determined by mechanically applying the rating criteria to certified test results.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examinations.  Evaluations of hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz.  The rating criteria establish eleven auditory acuity levels designated from I to XI.  As set forth in the regulations, Tables VI, VIa, and VII are used to calculate the rating to be assigned.  See 38 C.F.R. § 4.85 (Diagnostic Code 6100).

If impaired hearing is service connected in only one ear, as in the instant case, in order to determine the percentage evaluation from Table VII, the nonservice-connected, or right, ear will be assigned a Roman Numeral designation for hearing impairment of I.  38 C.F.R. § 4.85(f).  

Additionally, the regulations allow for evaluating exceptional patterns of hearing impairment.  When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(a).  When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral.  Thereafter, that numeral will be elevated to the next higher numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(b).  

In May 2006, the Veteran filed his claim for a compensable rating for left ear hearing loss.  He reported that his hearing loss had become much worse and that he had been issued hearing aids.  In support of his claim, the Veteran submitted a May 2006 VA audiology consult record.  An audiological test at that time revealed puretone thresholds, in decibels, as follows: 





HERTZ



1000
2000
3000
4000
Average
RIGHT
NSC
NSC
NSC
NSC
NSC
LEFT
35
50
95
100
70

The results for the right ear are not reported since it is not service-connected (NSC).  Speech recognition was reportedly 84 percent correct in the left ear.  

(Parenthetically, the Board notes that a heading for "3000 Hertz" was not reflected in the testing results.  However, the 95 dB puretone threshold (for the left ear) was identified as falling between 2000 Hertz and 4000 Hertz.  Thus, for purposes of this appeal, the Board will assume that the 95 dB finding is associated with the 3000 Hertz range.)

In July 2006, the Veteran underwent a VA C&P audiological evaluation.  Results from that test were noted by the examiner as not being reliable.  In particular, the examiner commented,

Word recognition could not be reliably assessed.  Pure tone responses varied up to 20 dB and did not agree with thresholds obtained in May 2006.  These findings are not reliable and NOT suitable for adjudication purposes.  

In the above noted September 2006 rating decision, the RO denied the Veteran's claim for a compensable rating for left ear hearing loss.  

In November 2006, the Veteran submitted an NOD to the AOJ's decision.  He also submitted a statement from a private audiologist, dated in October 2006, as well as an associated audiogram performed by the audiologist.  The audiologist noted in his statement that, in particular, audiological testing had revealed bilateral sloping sensorineural hearing losses involving all frequencies reaching severe to profound hearing loss levels for the higher frequencies.  Speech test results were noted to be in good agreement with puretone findings, indicating a significant reduction in sensitivity for conversational speech in both ears, the left being poorer than the right, accompanied by a mild reduction in speech clarity.  The October 2006 audiogram, submitted in graph form, is interpreted by the Board to reveal puretone thresholds, in decibels, as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
NSC
NSC
NSC
NSC
NSC
LEFT
65
65
80
95
76

(Parenthetically, as was the case with the May 2006 VA audiogram, the Board notes that a heading for "3000 Hertz" was not listed.  However, both the 55 dB and 80 dB puretone thresholds (for the right and left ears, respectively) were identified as falling between 2000 Hertz and 4000 Hertz.  Thus, for purposes of this appeal, the Board will assume that the 55 dB and 80 dB findings are associated with the 3000 Hertz range.).  Speech recognition score was 90 percent correct in the left ear.  

A VA C&P audiological examination was afforded to the Veteran in October 2011.  The examiner noted, in particular, the Veteran's report of difficulty hearing his wife and difficulty in hearing with background noise.  On audiological examination, puretone thresholds, in decibels, were as follows: 




HERTZ



1000
2000
3000
4000
Average
RIGHT
NSC
NSC
NSC
NSC
NSC
LEFT
30
30
60
85
51

The Maryland CNC speech recognition score was 80 percent on the left.  

The May 2006 VA audiogram and the October 2006 private audiogram are not adequate because it is not shown that speech reception threshold results were in accordance with Maryland CNC  See 38 C.F.R. § 4.85(a).  Regulation § 4.85(a) provides, in pertinent part: "An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test."  Id.  Assuming without conceding that the speech reception threshold was in accordance with Maryland CNC, the tests do not reflect a level of hearing loss that is compensably disabling.  

The average puretone threshold for the left ear based on the May 2006 VA audiogram is 70 dB.  Speech reception threshold of the left ear was 84 percent correct.  This would result in Level III hearing loss.  If only the puretone results were considered utilizing Table VIa (which allows for numeric designation of hearing impairment based only on puretone threshold average), the Veteran would have Level VI hearing impairment in the left ear.  In either case, a noncompensable rating would result.  

With respect to the October 2006 private audiogram, the puretone average for the left ear is 76.25 dB.  Speech reception threshold of the left ear was 90 percent correct.  This would result in Level III hearing loss.  If only the puretone results were considered utilizing Table VIa (which allows for numeric designation of hearing impairment based only on puretone threshold average), the Veteran would have Level VI/VII hearing impairment in the left ear.  In either case, a noncompensable rating would result.  

With respect to the October 2011 VA audiological test, the puretone average for the left ear is reported as 51 dB, with a Maryland CNC speech recognition test score of 80.  Based on the utilization of Table VI, the Veteran had Level IV hearing impairment in the left ear.  Applying the results to Table VII, a noncompensable rating would be warranted for left ear hearing loss based on the October 2011 audiological examination results.  38 C.F.R. § 4.85 (Diagnostic Code 6100).  The October 2011 VA audiological test results shown do not otherwise reflect exceptional hearing patterns.  38 C.F.R. § 4.86.  

In light of the puretone threshold averages and the speech recognition score, the Veteran's hearing impairment associated with his left ear is not disabling enough to warrant a compensable rating.  The rating criteria simply do not call for a compensable rating for the identified level of hearing impairment when considered with the nonservice-connected right ear.  This decision is based upon consideration of applicable rating provisions, the effects of the Veteran's hearing impairment, and the audiometric examination results.  Also, the audiometric testing results do not support a compensable rating based on exceptional left ear hearing pattern.  38 C.F.R. § 4.86. 

Consideration has also been given to whether the schedular rating is inadequate, requiring that the AOJ refer the claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extra-schedular evaluation.  Such a referral is warranted where a service-connected disability presents an exceptional or unusual disability picture that renders impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1).  

An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 115-116.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating, otherwise, the schedular evaluation is adequate, and referral is not required.  Id. at 116.

The schedular rating in this case is adequate.  There is no showing that the Veteran's service-connected left ear hearing loss is so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis.  38 C.F.R. § 3.321(b)(1).  The symptoms of this disability have been accurately reflected by the schedular criteria.  Furthermore, as noted above, the October 2011 VA examiner recorded the Veteran's report of communicative difficulties even with his use of hearing aids.  Thus, the examiner elicited information from the Veteran concerning the functional effects of his hearing loss.  Martinak, 21 Vet. App. 447.  That is all the applicable regulatory provisions require.  See 38 C.F.R. §§ 4.1, 4.2, 4.10.  The audiologist was not required to read the Veteran's mind.  See Cintron v. West, 13 Vet. App. 251, 259 (1999) (VA "ha[s] no obligation to read the mind of the veteran").  The Board has considered the Veteran's contentions regarding the effects his hearing loss has on his daily life.  Here, while the Veteran's left ear hearing loss can cause communication problems in many situations, there is no indication that the disability causes an unusual employment impairment or otherwise precludes the Veteran from engaging in daily activities.  

Therefore, without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted.  Thun, 22 Vet. App. at 115-16; 38 C.F.R. § 3.321(b)(1).  

Also, the record does not show, nor has the Veteran contended, that he is unemployable as a result of his service-connected left ear hearing loss.  Thus, a claim for a total disability rating based on individual unemployability due to service-connected disability (TDIU) need not be discussed further.  Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  

For the foregoing reasons, the Board finds that the claim for a compensable rating for left ear hearing loss must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Entitlement to a compensable rating for left ear hearing loss is denied.  


____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs