Citation Nr: 1329412 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 11-17 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for bilateral hearing loss. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1974 to April 1977. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which granted service connection for bilateral hearing loss, retroactively effective from July 30, 2009, the date of his new and material evidence claim. The Veteran then submitted a timely Notice of Disagreement (NOD) in December 2009, appealing the initial disability rating assigned. A subsequent rating decision in October 2010 denied the Veteran's increased rating claim. The Veteran then perfected a timely appeal of the initial disability rating assigned. In February 2012, the Veteran testified before the undersigned at a Board hearing held at the local RO (Travel Board hearing). A copy of the hearing transcript has been associated with the claims file. The Veteran's Virtual VA records were also reviewed and considered in preparing this decision. FINDING OF FACT Throughout his appeal, the Veteran's bilateral hearing loss has been manifested by Level XI hearing in the right ear and Level I hearing in the left ear. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for the Veteran's service-connected bilateral hearing loss are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Notice and Assistance Under applicable law, 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, 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). The Board finds that the content requirements of a duty-to- assist notice letter have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). A letter from the RO dated in August 2009 provided the Veteran with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. The letter also provided the Veteran with information concerning the evaluation and effective date that could be assigned should service connection be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). This letter was provided prior to the initial RO adjudication of his claim. Thus, the Board finds that VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed. The Veteran has been awarded an initial grant of service connection for bilateral hearing loss, and he seeks a compensable initial evaluation for that disability. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided was sufficient to support a grant of the claim for service connection, that notice is legally sufficient, and VA's duty to notify in this case has been satisfied. 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 (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. His STRs and post-service VA treatment records have been obtained. The claims file does not contain any evidence indicating that the Veteran is currently receiving disability benefits from the Social Security Administration (SSA) for his bilateral hearing loss. At his Board hearing, the Veteran testified that he was currently on SSA disability benefits for his joint disabilities. Therefore, the Board does not need to make an attempt to obtain these records. The Veteran's Virtual VA claims file was also reviewed in preparing this decision. The Board does not have notice of any additional relevant evidence that is available but has not been obtained. The Veteran has also been afforded VA examinations for his claim. The record is adequate and the need for a more contemporaneous examination occurs only when the evidence indicates the current rating may be incorrect. 38 C.F.R. § 3.327(a) (2012). Here, the most recent VA compensation examination of the Veteran's bilateral hearing loss was in August 2010. The report of that evaluation contains all findings needed to properly evaluate his disability. 38 C.F.R. § 4.2 (2012). The evidence of record does not suggest that the Veteran's bilateral hearing loss has worsened. Consequently, another examination to evaluate the severity of this disability is not warranted because there is sufficient evidence already of record to fairly decide this claim insofar as assessing the severity of the disability. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); Allday v. Brown, 7 Vet. App. 517, 526 (1995). With regard to the VA examination of record, the Board calls attention to Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). In Martinak, the Court held that relevant to VA audiological examinations, 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. In this regard, the August 2010 VA examiner specifically noted the Veteran's complaints that he has difficulty hearing in his occupational activities, but not in his usual daily activities. The Board finds this statement adequately describes the functional effects of the Veteran's disability, as it demonstrates that the VA examiner elicited information from the Veteran about the effects of his disability. Martinak, 21 Vet. App. at 455. In this regard, the Board notes that the Court's rationale in requiring an examiner to consider the functional effects of a Veteran's hearing loss disability involves the potential application of 38 C.F.R. § 3.321(b) (2012) in considering whether referral for an extraschedular rating is warranted. Specifically, the Court noted that, "unlike the rating schedule for hearing loss, 38 C.F.R. § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extraschedular rating is warranted. The VA Secretary's policy [requiring VA audiologists to describe the effect of a hearing disability on a Veteran's occupational functioning and daily activities] facilitates such determinations by requiring VA audiologists to provide information in anticipation of its possible application." Id. Therefore, the VA examination is not defective under Martinak. 21 Vet. App. at 455. Furthermore, the Veteran was afforded a Board hearing in February 2012. A Board member has two duties at a hearing: (1) a duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim, and (2) a duty to suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See 38 C.F.R. § 3.103(c)(2) (2012); Procopio v. Shinseki, No. 11-1253, 2012 WL 4882287 at 3 (Vet. App. Oct. 16, 2012) (citing Bryant v. Shinseki, 23 Vet. App. 488, 492, 496 (2010)). Here, during the hearing, the undersigned specifically noted the issue as "entitlement to an increased rating for bilateral hearing loss rated as 10 percent." See Board hearing transcript, page 2. The Veteran was assisted at the hearing by an accredited representative from the Veterans of Foreign Wars (VFW). Id. The representative noted the element of the claim that was lacking to substantiate the claim for benefits (namely, the service-connected bilateral hearing loss was getting worse and thus warranted an increased disability rating), and asked the Veteran questions regarding this element. See Board hearing transcript, pages 3-4, 7-10. The undersigned then explained to the Veteran that the hearing loss disability rating is determined by entering his current audiogram results into a specific formula. See Board hearing transcript, pages 21- 22. The undersigned also asked questions to ascertain whether the Veteran had submitted evidence in support of this claim, and to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. See Board hearing transcript, pages 13-17. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with the hearing requirements, nor identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the element necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the element necessary to substantiate his claim for benefits. As such, the Board finds that the undersigned complied with the aforementioned hearing duties, and that any error in notice provided during the Veteran's hearing constitutes harmless error. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155. Separate DCs identify the various disabilities. The assignment of a particular DC is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which DC or codes are most appropriate for application in the Veteran's case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). At the outset, the Board observes that the Veteran expressed his timely disagreement with the November 2009 rating decision that granted him service connection for his bilateral hearing loss. As such, the Veteran appealed the initial evaluation assigned and the severity of his disability is to be considered during the entire period from the initial assignment of the disability rating to the present. See Fenderson v. West, 12 Vet. App. 119 (1999). Disability ratings for hearing impairment are to be derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). VA regulations require that 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. 38 C.F.R. § 4.85. The Rating Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state- licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. Id. (CONTINUED ON THE NEXT PAGE) 38 C.F.R. § 4.85. In addition, 38 C.F.R. § 4.86 specifies two exceptional patterns of hearing impairment. The first exceptional pattern exists when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In this circumstance, the rating specialist must determine the auditory acuity level for each ear from either Table VI or Table VIA, whichever results in the higher level. Id. The second exceptional pattern exists when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(b). In this instance, the auditory acuity level for each ear will be selected from either Table VI or Table VIA, whichever results in the higher level. Id. Then, that level would be elevated to the next higher level. Id. Facts and Analysis The Veteran is currently in receipt of a 10 percent evaluation for his bilateral hearing loss under DC 6100. 38 C.F.R. §§ 4.85, 4.86. In October 2009, the Veteran was provided a VA audiological examination. The examination revealed the following puretone thresholds, in decibels: HERTZ 1000 2000 3000 4000 Average LEFT 10 25 40 40 29 RIGHT 65 85 85 85 80 Using the Maryland CNC test, the speech recognition score for the right ear was 28 percent, and the speech recognition score for the left ear was 96 percent. Applying the results of the October 2009 VA examination, the puretone threshold results for the right ear represents an exceptional pattern of hearing loss, since the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). Therefore, the right ear must be evaluated under Table VI or VIA, whichever results in the higher auditory acuity level. 38 C.F.R. §§ 4.85, 4.86. Under Table VIA, a puretone threshold average of 80 in the right ear will result in Level VII hearing in the right ear. Conversely, under Table VI, a puretone threshold average of 80 and a speech discrimination score of 28 in the right ear will result in Level XI hearing. For purposes of rating the Veteran's disability, the Board will use the Level XI hearing in the right ear, since this rating is more severe than the rating of Level VII hearing. 38 C.F.R. §§ 4.85, 4.86. Based on the October 2009 examination results, the left ear does not present with any exceptional hearing loss under 38 C.F.R. § 4.86. Thus, under Table VI, a puretone threshold average of 29 and a speech discrimination score of 96 will result in Level I hearing in the left ear. 38 C.F.R. § 4.85. Applying these results to the Table VII chart, Level XI hearing for the right ear combined with a Level I hearing for the left ear warrants a 10 percent rating, based on the October 2009 VA examination results. In August 2010, the Veteran was afforded another VA audiological examination. The examination revealed the following puretone thresholds, in decibels: HERTZ 1000 2000 3000 4000 Average LEFT 15 30 45 45 34 RIGHT 70 90 95 100 89 Using the Maryland CNC test, the speech recognition score for the right ear was 36 percent, and the speech recognition score for the left ear was 96 percent. Applying the results of the August 2010 VA examination, the puretone threshold results for the right ear represents an exceptional pattern of hearing loss, since the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). Therefore, the right ear must be evaluated under Table VI or VIA, whichever results in the higher auditory acuity level. 38 C.F.R. §§ 4.85, 4.86. Under Table VIA, a puretone threshold average of 89 in the right ear will result in Level VIII hearing in the right ear. Conversely, under Table VI, a puretone threshold average of 89 and a speech discrimination score of 36 in the right ear will result in Level X hearing. For purposes of rating the Veteran's disability, the Board will use the Level X hearing in the right ear, since this rating is more severe than the rating of Level VIII hearing. 38 C.F.R. §§ 4.85, 4.86. Based on the August 2010 examination results, the left ear does not present with any exceptional hearing loss under 38 C.F.R. § 4.86. Thus, under Table VI, a puretone threshold average of 34 and a speech discrimination score of 96 will result in Level I hearing in the left ear. 38 C.F.R. § 4.85. Applying these results to the Table VII chart, Level X hearing for the right ear combined with a Level I hearing for the left ear warrants a 10 percent rating, based on the August 2010 VA examination results. The VA treatment records in the claims file do not provide contrary results to those discussed above. Thus, based on the VA examinations and the VA treatment records, the Board finds that the Veteran is not entitled to an initial disability rating in excess of 10 percent for his service- connected bilateral hearing loss. 38 C.F.R. §§ 4.85, 4.86, DC 6100. In forming this decision, the Board has considered the lay statements of record from the Veteran, his family, and his friends. The Board notes that in adjudicating a claim, the competence and credibility of the lay statements must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368- 69 (2005). The Board acknowledges that the Veteran, and his family and friends, are competent to give evidence about what they observe or experience. For example, the Veteran is competent to report that he experiences certain symptoms, such as difficulty hearing, and he is credible in this regard. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). However, the competent and credible lay statements arguing that the Veteran's bilateral hearing loss is worse than the assigned rating, however, are outweighed by the competent and credible medical examinations that evaluated the true extent of impairment based on objective data coupled with the lay complaints. The VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints. Indeed as stated above, disability ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. For these reasons, greater evidentiary weight is placed on the physical examination findings. Since, as mentioned, the present appeal arises from an initial rating decision which established service connection and assigned an initial disability rating, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings (i.e., separate ratings for separate periods of time based on the facts found). See Fenderson, 12 Vet. App. at 125-26. The Veteran, however, has not met the requirements for a higher rating at any time since the effective date of his award, so the Board may not stage his rating because his worst hearing, Level I in the left ear and XI in the right ear, warrants a rating no higher than the current 10 percent evaluation during the entire period at issue. For these reasons and bases, the preponderance of the evidence is against the Veteran's claim - in turn meaning there is no reasonable doubt to resolve in his favor and his claim must be denied. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2012); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Extraschedular Evaluation The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate the Veteran's disability picture and that picture has attendant thereto related factors, such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2012). Here, at the October 2009 VA examination and at his Board hearing, the Veteran reported that his hearing loss affects his ability to communicate with people. The August 2010 VA examiner specifically noted the Veteran's complaints that he has difficulty hearing in his occupational activities, but not in his usual daily activities. The Veteran has not described exceptional or unusual features associated with his hearing loss. There is no doubting the Veteran's symptoms cause some impairment in his functioning and capacity. However, the extent of his impairment is adequately contemplated by the rating criteria, which reasonably describe the effects of his disability. The Board notes that the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability. In support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86. In this regard, the rating criteria for hearing loss were last revised, effective June 10, 1999. See 64 Fed. Reg. 25206 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17295 (April 12, 1994). Accordingly, the Board finds that functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria. Therefore, the Veteran's struggle to comprehend verbal conversations and other noises is a factor contemplated in the regulations and rating criteria as defined. Accordingly, the Board determines that the Veteran's complaints of hearing difficulty have been considered under the numerical criteria set forth in the rating schedule. In short, the rating criteria reasonably describe the Veteran's disability levels and symptomatology. As the Board finds that the Veteran's disability picture is contemplated by the rating schedule, the inquiry ends and the Board need not consider whether the disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Accordingly, referral for consideration of an extraschedular rating is not warranted. Finally, the Board also recognizes that the Court has clarified that a claim for a total disability rating based on individual unemployability (TDIU) due to service- connected disabilities exists as part of a claim for an increase (whether in an original claim or as part of a claim for increased rating). Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU claim is considered reasonably raised when a Veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). While the Veteran reported that his bilateral hearing loss impacted his occupational activities, he did not definitively contend that his bilateral hearing loss rendered him unemployable and the evidence does not otherwise suggest that this is the case. Rather, in response to the question of whether the Veteran had lost any jobs due to his hearing, the Veteran replied, "Well, I feel like I have. But I can't-I can't prove it, I mean. . . . They either make it so hard on ya you quit or they find, uh, loophole around the rules to get you out." Indeed, at his Board hearing, the Veteran testified that he was currently unable to work and on SSA disability benefits for his joint disabilities, and not for his bilateral hearing loss. Thus, for these reasons, the Board finds that a claim for TDIU has neither been raised by the Veteran nor by the record in regard to the rating issue before the Board. ORDER An initial disability rating in excess of 10 percent for the Veteran's service-connected bilateral hearing loss is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs