Citation Nr: 1329629 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 05-18 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an increased initial rating for bilateral hearing loss, evaluated as noncompensably disabling from July 28, 2004, to September 10, 2010, and as 40 percent disabling since September 11, 2010. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Woodward Deutsch, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) from a January 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection and assigned a noncompensable rating for bilateral hearing loss, effective July 28, 2004. A February 2011 rating decision increased the Veteran's disability rating to 40 percent, effective September 11, 2010. In March 2008, the Veteran testified before the undersigned Veterans Law Judge at a hearing at the RO. A transcript (Tr.) of the proceeding is of record. In October 2008, August 2010, October 2011, and January 2013, the Board remanded the Veteran's hearing loss claim for additional evidentiary development. That development is now complete and, thus, appellate review may proceed. The issues previously referred to the agency of original jurisdiction (AOJ) - entitlement to a total disability rating based on unemployability and entitlement to special monthly compensation for erectile dysfunction secondary to service-connected diabetes mellitus and coronary artery disease - have since been adjudicated in a May 2013 rating decision. Those issues are not currently before the Board. FINDINGS OF FACT 1. From the initial date of service connection (July 28, 2004) to September 10, 2010, the Veteran's service-connected bilateral hearing loss was no worse than Level VI in the right ear and Level I in the left ear. 2. Since September 11, 2010, the Veteran's service- connected bilateral hearing loss has been no worse than Level XI the right ear and Level V in the left ear. CONCLUSION OF LAW The Veteran's bilateral hearing loss has not met the criteria for an initial rating in excess of 0 percent prior to September 11, 2010, or a rating in excess of 40 percent thereafter. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran alleges that his bilateral hearing loss has progressively worsened since the date of service connection and is more severe than contemplated by his currently assigned disability ratings. However, for the reasons set forth below, the Board finds that the evidence of record does not warrant increased evaluations. The Veterans Claims Assistance Act of 2000 (VCAA) Prior to reaching the merits of this appeal, the Board must address VA's duties to notify and assist pursuant to the VCAA. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, the Veteran is challenging the initial disability evaluations assigned following the grant of service connection for bilateral hearing loss. In Dingess, the United States Court of Appeals for Veterans Claims (Court) held that, 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. See Dingess, 19 Vet. App. at 490-91; see also 38 C.F.R. § 3.159(b)(3)(i) (2012). Hence, because the August 2004 notice letter that preceded the grant of service connection was sufficient, VA's duty to notify in this case has been satisfied. See generally Turk v. Peake, 21 Vet. App. 565 (2008) (where a party appeals from an original assignment of a disability rating, the claim is classified as an original claim, rather than as one for an increased rating); see also Fenderson v. West, 12 Vet. App. 119 (1999) (establishing that initial appeals of a disability rating for a service-connected disability fall under the category of 'original claims'). As such, no further development is required with respect to the duty to notify under 38 C.F.R. § 3.159(b). Nor is any further development required with respect to the duty to assist under 38 C.F.R. § 3.159(c). To the contrary, the record reflects that VA has made reasonable efforts to obtain relevant evidence identified by the Veteran in connection with his appeal. Specifically, the documents associated with the claims file include service treatment records, VA audiological examination reports, private treatment records, and the Veteran's own written statements and hearing testimony. The Board acknowledges that the Veteran has submitted reports of December 2006 and February 2008 private audiometric examinations, which contain the results of speech discrimination tests, but do not denote whether the Maryland CNC Test was used. The Board further recognizes that, in such instances where missing information is "relevant, factual, and objective-that is, not a matter of opinion-and where the missing evidence bears greatly on the probative value of the private examination report," VA is required to seek clarification from the professional who provided the examination report, either directly or through the claimant. See Savage v. Shinseki, 24 Vet. App. 259, 270 (2011) (holding that the Board erred in failing to seek clarification as to whether a private audiologist used the Maryland CNC word list in performing speech recognition testing). Accordingly, the Board has remanded the Veteran's hearing loss claim for the express purpose of obtaining such information. See October 2011 and January 2013 Board Remands. Pursuant to the Board's directives, the AOJ has requested that the Veteran provide the written authorizations necessary to seek clarification from the December 2006 and February 2008 private audiological examiners. However, the Veteran has declined to provide the requested authorizations. Indeed, even after the AOJ, acting in compliance with the Board's latest Remand, has advised the Veteran that "any prior authorization for the release of information or records has expired and that he must submit a new form authorizing VA to obtain records or information, or VA will not be able to assist in obtaining those records," the Veteran has indicated that he has no further information to submit in connection with his hearing loss claim. See February 2013 Statement from the Veteran. His representative has likewise declined to provide any additional evidence in support of the appeal. See March 2013 Statement from The American Legion. As such, the Board is satisfied that VA has exhausted reasonable efforts to obtain clarification of the Veteran's private audiometric examination reports and, thus, the specific duty to assist set forth in Savage v. Shinseki has been met in this case. See Savage, 24 Vet. App. at 270. Similarly, the Board finds that VA has effectively met its duty to assist the Veteran by furnishing multiple audiological examinations in support of his claim. The Veteran has not contended, and the record has not otherwise shown, that his service-connected hearing loss has worsened since his most recent VA examination. Therefore, notwithstanding the passage of time since that February 2012 examination was administered, the Board considers it probative for the purpose of deciding the Veteran's claim. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (noting that the mere passage of time does not automatically render an examination inadequate for VA rating purposes). Significantly, the VA audiologist who conducted the February 2012 examination satisfied the Board's Remand directives by not only providing audiometric findings but also addressing in detail the current and historical impact of the Veteran's service-connected hearing loss on his occupational functioning and daily activities. As such, that VA examiner furnished a report that comports with tenets of Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007) (holding that a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report). Moreover, neither the Veteran nor his representative has alleged any inadequacy with the February 2012 VA examiner's report, and none has been otherwise shown. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the Board finds that its prior Remand requests for an updated VA examination, and a medical opinion addressing the Martinak criteria, have met with substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board also finds that the AOJ has substantially complied with the other Remand directives concerning the issue on appeal. Id. Those directives have included eliciting the written authorizations and undertaking the other evidentiary development described above. The AOJ has completed the requested development to the extent possible. Therefore, the Board is satisfied that there has been substantial, if not total, compliance with the terms of its latest Remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); D'Aries v. Peake, 22 Vet App. 97, 105 (2008) (discussing situations when it is acceptable, instead, to have "substantial" compliance, even if not "exact," total," or "complete" compliance, per se). As a final matter regarding the duty to assist, the Board observes that the Veteran has had the opportunity to testify in support of his claim during his March 2008 hearing. 38 C.F.R. § 20.700(a) (2012). The transcript of that proceeding reflects that the undersigned set forth the issue on appeal at the start of the hearing. The undersigned then focused on the elements necessary to substantiate the claim and sought to identify any further development that was required. Specifically, the undersigned elicited testimony from the Veteran about his worsening hearing loss symptoms, as well as the functional impact of those symptoms on his ability to converse with relatives and to participate in other activities of daily life. See Board Hearing Tr. at 6- 8. Through these actions, which later prompted the Board to remand the appeal for additional development, the undersigned satisfied the duties of a Veterans Law Judge to explain fully the issue and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). The Veteran has not alleged, and the evidence has not otherwise shown, that the undersigned failed to comply with 38 C.F.R. § 3.103(c)(2) or committed other prejudicial error. Moreover, there is no indication that the Veteran was otherwise denied due process during his Board hearing. In light of the foregoing, the Board finds that VA's duties to notify and assist have been satisfied with respect to the bilateral hearing loss claim decided herein and, thus, appellate review of that issue may now proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Merits of the Claim The Veteran seeks increased compensation for his bilateral hearing loss, which has been evaluated under the criteria set forth in the VA Schedule for Rating Disabilities. These criteria are intended to represent the average impairment of earning capacity resulting from service-connected disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities, which must be reviewed in relation to their history. 38 C.F.R. § 4.1. Where, as here, a claimant has disagreed with the assignment of the initial evaluations following the grant of service connection, separate ratings may be assigned to account for discrete periods of time in which the severity of the underlying disability has varied - a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran's bilateral hearing loss is evaluated according to a mechanical application of the Rating Schedule, using numeric designations that are based upon audiometric test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Ratings for bilateral defective hearing range from 0 percent to 100 percent. The basic method of rating hearing loss involves audiological test results of 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 puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. To evaluate the degree of disability from service-connected hearing loss, the Rating Schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. See 38 C.F.R. § 4.85 (2012). The current rating criteria include alternate methods of rating exceptional patterns of hearing loss, as defined in 38 C.F.R. § 4.86. The first such method provides that, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or above, 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. 38 C.F.R. § 4.86(a) (2012). The second alternate rating method provides that, when the puretone threshold is 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, and then elevate that numeral to the next higher Roman numeral, evaluating each ear separately. 38 C.F.R. § 4.86(b) (2012). In this case, the Veteran meets the criteria for a rating based on the first exceptional pattern of hearing, in the right ear only. Accordingly, his right ear hearing loss will be evaluated according to the provisions of 38 C.F.R. § 4.86(a) as well as the standard method. 38 C.F.R. §§ 4.85, 4.86(a). The Veteran's audiological findings do not support application of the provisions of 38 C.F.R. § 4.86(b) in either ear. The Board now turns to the pertinent evidence of record. As detailed below, that evidence shows that the Veteran's bilateral hearing loss has been adequately compensated by his previously assigned disability ratings. July 28, 2004, to September 10, 2010 During this initial period following the grant of service connection, the Veteran's hearing loss has been rated noncompensably disabling based upon the results of a November 2005 VA audiological examination. At that time, the Veteran's bilateral puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 65 60 75 80 70 LEFT 20 45 75 75 54 Speech audiometry revealed speech recognition ability of 72 percent in the right ear and 92 percent in the left ear. The November 2005 VA examiner commented that the Veteran's test results comported with diagnoses of severe mixed hearing loss and mild to severe sensorineural hearing loss in the right and left ears, respectively. Additionally, the November 2005 examiner observed that the Veteran's hearing loss, by his own account, caused him "difficulty with all things, especially on the right side." The Veteran later elaborated on the nature of this functional impairment by testifying at his Board hearing that he "misinterpreted a lot" of words spoken by his mother and other relatives, and that he frequently resorted to reading lips in order to understand conversations. See Board Hearing Tr. at 6-8. Following the November 2005 examination, the Veteran underwent two private audiometric evaluations. As noted previously, the results of those December 2006 and February 2008 evaluations did not specify whether the Maryland CNC Test had been used. However, while VA has repeatedly attempted to seek clarification from the December 2006 and February 2008 examiners, the Veteran has declined to provide the authorizations necessary to elicit information from these private clinicians. Accordingly, while mindful of the tenets of Savage v. Shinseki, the Board has concluded that further attempts to clarify the results of the December 2006 and February 2008 private evaluations would be futile in this case. Savage, 24 Vet. App. at 270. Therefore, notwithstanding the efforts of a September 2010 VA audiologist to retrospectively interpret the results of the Veteran's private evaluations, the Board finds that those hearing test results are invalid for rating purposes. 38 C.F.R. § 3.385 (2012). Similarly invalid are the results of a January 2009 VA examination in which audiometric testing was conducted in the Veteran's left ear only. The January 2009 examiner found that the puretone thresholds in the Veteran's right ear were "elevated" and "not adequate for rating," but did not elaborate further. This evidentiary omission prompted the Board to remand for a new VA examination, the results of which will be discussed subsequently in this decision. The Board also considered seeking clarification of the January 2009 VA examination report in accordance with Savage v. Shinseki, but concluded that the Court's holding in that case was inapplicable for two reasons. Savage, 24 Vet. App. at 270. First, the January 2009 report had been prepared by a VA examiner, rather than by a private audiologist, as in Savage. Id. Secondly, the right ear puretone threshold readings missing from the January 2009 report could not be clarified since, by the VA examiner's own admission, that ear had not been rated. Id. As such, it would have been futile for the Board to seek clarification of the Veteran's right ear audiometry findings as no such findings had been rendered at the time of his January 2009 VA examination. Thus, the Board concludes that the results contained in that January 2009 examination report may not be used to substantiate the Veteran's claim. Accordingly, the only valid audiometric test results for the rating period prior to September 11, 2010, are those that were elicited during the November 2005 VA examination. Applying those results to Table VI in 38 C.F.R. § 4.85 yields findings of Level VI hearing loss in the right ear and Level I hearing loss in the left ear. Such findings equate to a noncompensable percent rating under Table VII. 38 C.F.R. § 4.85 (2012). The Board's analysis does not end here as the Veteran's right ear test results qualify for consideration under the first alternate method for rating exceptional hearing loss set forth above. 38 C.F.R. § 4.86(a). That method yields a designation of Level VI in the right ear, which, when applied to the Level I hearing loss observed for the left ear, corresponds to a 0 percent rating under Table VII. 38 C.F.R. § 4.85. Thus, even when the Veteran's right ear is analyzed pursuant to 38 C.F.R. § 4.86(a), the disability rating for his bilateral hearing loss is the same as when the standard method under 38 C.F.R. § 4.85 is applied. Absent any other valid audiological findings during the appeals period immediately following the grant of service connection, an initial compensable rating for the Veteran's bilateral hearing loss is not warranted. September 11, 2010, to the Present During this period of the appeal, in which the Veteran's service-connected disability has been rated 40 percent disabling, he has undergone two VA examinations. The first such examination, conducted in September 2010, included audiometric testing of the Veteran's right and left ears, which yielded the following results, in decibels: HERTZ 1000 2000 3000 4000 Avg. RIGHT 70 70 65 85 74 LEFT 15 60 65 70 53 The Veteran's speech audiometry scores were 48 percent in the right ear and 72 percent in the left ear. Based upon those results, the September 2010 VA examiner determined that the Veteran had bilateral sensorineural hearing loss that was severe in his right ear and moderately severe in his left. The examiner further opined that the Veteran's hearing loss was productive of significant occupational effects. Thereafter, a different VA examiner described the functional impairment associated with the Veteran's hearing loss, noting in a February 2012 examination report: The [V]eteran's current hearing impairment would impact his ability to communicate on the telephone unless he has the ability to increase the clarity and volume of the conversation. Since he would not be able to read lips while using the telephone, his current degree of hearing loss in his better ear would make it difficult to hear clearly at all times. He would use his left ear at this time as his right ear is significantly worse. His hearing loss would impact his occupational function in the auto body shop industry as he primarily provides estimates for repair work and needs to communicate with his patrons to enable him to properly provide accurate estimates. If he is communicating one-on-one in an office setting with little background interference, he would be able to understand a majority of the conversation with his left ear but if there is background noise present, there would be significant difficulty in understanding speech. The [V]eteran has also worked in the textile industry [where] he would be required to wear hearing protection at all times; thus his current hearing status would not impact his ability to perform [those] duties. He would have trouble hearing any sirens with ear plugs on and therefore may need to have visual warning signalers available. The [V]eteran would have difficulty localizing sounds around him as his hearing in the right ear is significantly worse than the left ear but that would not render him unable to perform his duties. In addition to making the above findings, the February 2012 VA examiner conducted bilateral audiometric testing, the results of which were as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 65 75 70 80 72 LEFT 15 60 70 70 54 Speech discrimination scores were 36 percent in the right ear and 88 percent in the left ear. Applying the September 2010 and February 2012 VA examination results to the relevant diagnostic criteria reveals that the Veteran has consistently manifested Level IX hearing loss in his right ear under Table VI in 38 C.F.R. § 4.85. Conversely, with respect to the Veteran's left ear, his September 2010 VA examination results have met the criteria for Level V hearing loss, whereas his February 2012 VA examination results have denoted only Level II hearing loss. Therefore, while the Veteran would qualify for a 40 percent rating under Table VII if his September 2010 VA examination results were considered, he would only be entitled to a 20 percent rating if his February 2012 examination results were used. The same evaluations would be warranted if the first method for rating exceptional hearing loss was applied to the Veteran's right ear. 38 C.F.R. § 4.86(a) (2012). As discussed, the Veteran is already in receipt of a 40 percent rating for the entire appeals period effective September 11, 2010. Thus, based upon the foregoing clinical findings, he has not demonstrated entitlement to a higher evaluation at any time during this appeals period. Martinak Criteria In arriving at this decision, the Board has considered the effects of the Veteran's hearing loss on his occupational functioning and daily activities in accordance with Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). The Court's holding in Martinak followed the initial VA examination conducted in this case. Nevertheless, the Board finds that the November 2005 VA examiner addressed the Veteran's functional hearing impairment by noting the difficulties that he experienced, particularly with respect to his right ear. The Veteran then expounded on these difficulties during his March 2008 Board hearing, when, as discussed previously, he attested to the specific challenges he encountered during conversations with his mother and other relatives. See Board Hearing Tr. at 6-8. Thereafter, the September 2010 VA examiner opined that the Veteran's bilateral hearing loss was productive of significant functional effects. Most notably, the February 2012 VA examiner discussed at length the practical effects of this service-connected disability on the Veteran's employment, social interactions, and other activities of daily living. In addition, the February 2012 examiner offered concrete examples of the current social and occupational impairment associated with the Veteran's hearing loss, including its interference with his ability to converse on the telephone and to provide estimates to clients. That VA examiner also commented on the historical effects posed by the Veteran's disability on his employment in the automotive and textile industries. As such, the Board finds that the collective results of the Veteran's VA examinations, in tandem with his own testimony, have adequately represented the functional effects of his bilateral hearing loss throughout the entirety of this appeal. Extraschedular Consideration The Board also has considered whether the Veteran's bilateral hearing loss presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extraschedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). The schedular rating criteria, which are based on hearing acuity at various frequencies and on the ability to understand spoken words, contemplate difficulty hearing both sounds as well as spoken words, such as those competently and credibly reported by the Veteran during his VA examinations and in testimony before the Board. The above criteria provide for higher ratings, but, as was previously discussed, the current evaluations adequately describe the current severity of the Veteran's bilateral hearing loss. Hence, his disability picture is contemplated by the VA rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). It follows that referral for extraschedular consideration is not warranted in this case. In determining that the Veteran is not entitled to increased compensation on either a schedular or extraschedular basis, the Board wishes to emphasize that it remains sympathetic to his complaints regarding the progressive worsening of his bilateral hearing loss and the detrimental effects it imposes on his occupational and social functioning. Nevertheless, the Board is constrained by the mechanical formula for evaluating hearing loss set forth in the VA rating schedule, and by the lack of any exceptional factors that would warrant referral for an extraschedular rating. In summary, the Board finds that the results of the VA audiological examinations conducted throughout this appeal are more probative than the Veteran's own lay contentions as to the severity of his bilateral hearing loss. Therefore, as the results of those examinations do not support the assignment of an increased initial rating for his service- connected disability, the benefits sought on appeal must be denied. ORDER Entitlement to an increased initial rating for bilateral hearing loss, evaluated as noncompensably disabling from July 28, 2004, to September 10, 2010, and as 40 percent disabling since September 11, 2010, is denied. ____________________________________________ LAURA H. ESKENAZI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs