Citation Nr: 1329680 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 12-35 452 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran has verified active duty service from August 1953 to August 1957, from October 1957 to October 1967, and from September 1990 to May 1991. It also appears that the Veteran had reserve service. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. When the case was last before the Board in May 2013, it was remanded for additional development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The competent medical evidence indicates that the Veteran's bilateral hearing loss is manifested by no greater than level I hearing loss in the right ear and level II in the left ear. CONCLUSION OF LAW The requirements for an initial compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 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 (2012). A December 2011 letter satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Once a claim for service connection has been substantiated, the filing of a notice of disagreement with the initial rating of the disability on appeal, as the Veteran did in April 2012 with respect to his bilateral hearing loss, does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, any defect as to notice is non-prejudicial. See id; Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 134 (2008) (where a claim has been substantiated after August 29, 2000, the appellant bears the burden of demonstrating any prejudice from defective notice with respect to any downstream elements). VA examinations were conducted in April 2011 and July 2013; the Veteran has not argued, and the record does not reflect that these examinations were inadequate for rating purposes. The examinations were adequate because they were based on an examination of the Veteran and provided sufficient information to address the rating criteria for the disability on appeal. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Moreover, they address the effect of the Veteran's hearing loss on his occupational functioning and daily activities. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). There is no indication in the record that any additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this regard, and as noted below, the case was remanded in May 2013, in part, in order to obtain clarification from the Veteran's private audiologist concerning the date of an audiology report submitted and whether the private audiologist used the Maryland CNC Word list. Although the Appeals Management Center (AMC) sent the Veteran a letter in May 2013 requesting authorization to obtain such clarification, the Veteran did not respond to the letter and did not provide any necessary authorization in this regard. Therefore, as there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the Board is satisfied as to compliance with the instructions from its May 2013 remand. Specifically, the May 2013 Board remand instructed the RO/AMC to contact the Veteran and request that the Veteran provide information concerning any outstanding records regarding his hearing loss. The RO/AMC was also instructed to obtain clarification from Optimal Hearing regarding the date of the hearing test and whether the Maryland CNC word test was used. In May 2013 the AMC sent the Veteran a letter requesting information about outstanding treatment records, as well as authorization so that the AMC could obtain clarification from Optimal Hearing. The Veteran did not respond to the letter and he did not provide authorization for VA to obtain clarification from Optimal Hearing. The Board also instructed the RO/AMC to schedule the Veteran for a VA examination to determine the severity of his bilateral hearing loss. The Board finds that the RO/AMC has substantially complied with the Board's instructions and that the July 2013 VA examination report substantially complies with the Board's May 2013 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Importantly, the examination report address the effect of the Veteran's hearing loss on his occupational functioning and daily activities. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). Legal Analysis Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), 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 (2012). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012). The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. In all claims for increase, VA has a duty to consider the possibility of assigning staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold as measured by puretone audiometric tests. To evaluate the degree of disability resulting from service- connected hearing loss, the Schedule establishes eleven levels of impaired efficiency, numerically designated from Level I to Level XI. Level I represents essentially normal hearing acuity for VA compensation purposes, with hearing loss increasing with each level to the profound deafness represented by Level XI. 38 C.F.R. § 4.85, Tables VI, VII (2012). Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85 (2012). 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. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a) (2012). Exceptional patterns of hearing impairment are addressed in 38 C.F.R. § 4.86. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a) (2012). When the pure tone 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b) (2012). In this case, the Veteran underwent a VA audiological evaluation in April 2011, which reflects that, on audiological testing, pure tone thresholds of each ear, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 40 65 65 51 LEFT 45 45 65 85 60 Speech discrimination scores using the Maryland CNC controlled speech discrimination tests were noted to be 94 percent in the right ear and 92 percent in the left ear. The examiner noted that the Veteran's bilateral hearing loss has significant impact on his employment in terms of hearing difficulty. It was also noted that his bilateral hearing loss affects his daily activities in terms of difficulty communicating and understanding conversational speech. The Veteran underwent another VA audiological evaluation in July 2013. The July 2013 VA examination report reflects that, on audiological testing, pure tone thresholds of each ear, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 35 65 65 50 LEFT 45 45 65 85 60 Speech discrimination scores using the Maryland CNC controlled speech discrimination tests were noted to be 88 percent in the right ear and 86 percent in the left ear. The examiner noted that the Veteran's greatest difficulty was hearing women and children. The Veteran submitted an August 2011 private VA audiological evaluation report, which reflects that, on audiological testing, pure tone thresholds of each ear, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 40 65 70 52 LEFT 50 50 70 90 65 The results of the August 2011 private audiometric test were charted, not enumerated. Because the results as charted are clear and unmistakable even to laypersons, they may be interpreted by the Board. Savage v. Shinseki, 24 Vet. App. 259 (2011) (noting that the Board may interpret results from a private audiometric graph if it felt it had the expertise); c.f. Kelly v. Brown, 7 Vet. App. 471, 474 (1995). Speech discrimination scores were not listed. The Veteran submitted, along with the August 2011 private VA audiological evaluation report, another, undated private audiological evaluation report, which reflects that, on audiological testing, pure tone thresholds of each ear, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 25 35 60 52 LEFT 35 30 60 80 54 The results of this private audiometric test were charted, not enumerated. Because the results as charted are clear and unmistakable even to laypersons, they may be interpreted by the Board. Savage v. Shinseki, 24 Vet. App. 259 (2011) (noting that the Board may interpret results from a private audiometric graph if it felt it had the expertise); c.f. Kelly v. Brown, 7 Vet. App. 471, 474 (1995). Speech discrimination scores were noted to be 92 percent in the right ear and 96 percent in the left ear; however, the report does not indicate that such speech discrimination tests were Maryland CNC controlled speech discrimination tests. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the claim for a compensable rating for bilateral hearing loss must be denied. Initially, the Board finds that neither the August 2011 private audiological report nor the undated private audiological report is adequate for adjudication purposes. The August 2011 private audiological report does not reflect that speech discrimination testing was conducted and the undated private audiological report does not indicate that speech discrimination testing was accomplished using the Maryland CNC controlled speech discrimination testing, as is required for examination for hearing impairment for VA rating purposes. See 38 C.F.R. § 4.85(a). Therefore, the Board finds that the these private audiological reports are not probative in this case for determining the Veteran's level of hearing disability for purposes of establishing an increased rating for hearing loss consistent with VA regulations. The Board finds that the April 2011 and July 2013 VA examination reports provide adequate information for rating purposes. Applying the method for evaluating hearing loss to the results of these examination reports, the April 2011 VA examination revealed Level I hearing in the right ear and Level II hearing in the left ear, and the July 2013 VA examination revealed Level II hearing in the right ear and Level III hearing in the left ear, based on application of the reported findings to Table VI. Application of these findings to Table VII corresponds to a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. The Board notes that the Veteran does not meet the criteria for an exceptional pattern of hearing, as pure tone thresholds at each of the four specified frequencies has not been shown to be 55 decibels or more. Moreover, at no time has the pure tone threshold been 30 or less at 1000 Hertz and 70 or more at 4000 Hertz. As such a higher rating on the basis of an exceptional pattern of hearing is not for application. There are no competent audiological evaluation results of record indicating a higher level of hearing loss during the period of the claim. Consequently, an initial compensable rating for the Veteran's bilateral hearing loss is not warranted at any time during the initial evaluation period. The Board recognizes the Veteran's assertions his hearing loss has impacted the ordinary conditions of his daily life and have caused him difficulty in understanding speech, especially the voices of women and children. While the Board acknowledges the difficulties that the Veteran experiences as a result of his bilateral hearing loss, the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Thus, the Board must base its determination on the audiological evaluation results of record, and is bound by law to apply VA's rating schedule based on such results. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012); see also Lendenmann v. Principi, 3 Vet. App. 345 (1992). In sum, the preponderance of the evidence is against the Veteran's claim for an increased rating at any time during the appeal period. Hart, 21 Vet. App. at 509. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. at 54-56. Extraschedular Consideration 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, then 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 extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation. 38 C.F.R. § 3.321(b) (1) (2012). Otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 116. The Board finds that the schedular rating for the Veteran's service-connected bilateral hearing loss is adequate. Ratings in excess of the assigned rating are provided for higher levels of severity of the disability, but for certain manifestations which the medical evidence reflects are not present in the Veteran's clinical picture. Therefore, the Veteran's disability picture is contemplated by the Rating Schedule; no extraschedular referral is required. In sum, the record does not reflect that the Rating Schedule is inadequate to contemplate the manifestations of his disability. Thus, no extraschedular referral is required. In denying the Veteran's claims for an increased rating, the Board observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that his service- connected bilateral hearing loss renders him totally unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised. ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs