Citation Nr: 1329741 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 09-37 083A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an increased rating for bilateral hearing loss, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Adrian Jackson, Counsel INTRODUCTION The Appellant is a Veteran who served on active duty from August 1966 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA). In that decision, the RO issued a rating reduction decreasing the Veteran's rating from 40 percent disabling to 20 percent disabling, effective October 1, 2007. In a July 2009 Board decision, the rating reduction was affirmed, however the Board determined that the Veteran's claim should be divided into two claims and that the rating reduction issue should be separate from the increased rating issue. As such, the Board remanded the claim for entitlement for an increased rating for bilateral hearing loss for issuance of a statement of the case (SOC) on the issue. In December 2010, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the undersigned VLJ set forth the issues to be discussed at the hearing. The Veteran's representative asked questions pertinent to his hearing loss and treatment, and the case was remanded to obtain evidence that might substantiate the claim. Thus, any error in this regard is nonprejudicial. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. The case was again before the Board in April 2011 and the increased rating claim was remanded for further development. It has been returned to the Board for review. The Board noted in the prior remand, that the issue of entitlement to service connection for a disease of the ear had been raised by the record. The Board referred the issue to the Agency of Original Jurisdiction. However it does not appear that any development was initiated. Also, the Veteran's representative in the July 2013 Informal Hearing Presentation raised the issue of service connection for residuals of multiple head trauma and well as the issue of whether there was clear and unmistakable error in the July 2007 rating decision that reduced the rating for bilateral hearing loss from 40 percent to 20 percent. As the Board does not have jurisdiction over these issues, they are referred to the AOJ for appropriate action. FINDING OF FACT The Veteran has, at worse, Level V hearing in both ears. CONCLUSION OF LAW The criteria are not met for a rating in excess of 20 percent for the bilateral hearing loss. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.3, 4.7, 4.85, 4.86 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Before addressing the underlying merits of a claim, the Board generally is required to ensure that VA's duties to notify and assist the claimant with the claim have been satisfied under the Veterans Claims Assistance Act (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). In a freestanding claim for an increased evaluation, the VCAA requirement is generic notice: the type of evidence needed to substantiate the claim, which consists of evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In this case, a letter satisfying these notice requirements of 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in September 2006, prior to initially adjudicating his claim, so in the preferred sequence. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The letter informed him of the evidence required to substantiate his claim and of his and VA's respective responsibilities in obtaining this supporting evidence. The letter also complied with Dingess by as well discussing the downstream effective date element of his claim. He has not alleged any VCAA notice error. As explained in Shinseki v. Sanders, 129 S. Ct. 1696 (2009), as the pleading party attacking the agency's decision, he, not VA, has this burden of proof of showing there is a VCAA notice error in timing or content and, moreover, that it is unduly prejudicial - meaning outcome determinative of his claim. Thus, absent this pleading or showing, the duty to notify has been satisfied. VA also has satisfied its duty to assist the Veteran with this claim by obtaining all potentially relevant evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO has obtained all records that he has identified as possibly pertinent, including his VA and private medical evaluation and treatment records. He also was provided VA compensation examinations to assess the severity of his bilateral hearing loss, which in turn permit the Board to determine whether his existing rating is appropriate. As further concerning the duty to assist him with this claim, the RO obtained his service treatment records (STRs), private medical records, and VA evaluation and treatment records - including the report of his VA compensation examination. On remand the RO attempted to gather additional information regarding his private audiological testing from both the Veteran and the audiologists that conducted those evaluations. The Board finds that there was compliance with its April 2011 remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In the July 2013 Informal Hearing Presentation, the Veteran's representative requested a current examination; however, a review of the record does not show that the Veteran has reported an increase in the severity of his hearing loss. The report of that May 2010 VA compensation examination provides the findings and information needed to assess the severity of this hearing loss in relation to the applicable rating criteria. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board also has considered the Court's holding in Martinak v. Nicholson, 21 Vet. App. 447 (2007). In this decision, the Court noted that, unlike the Rating Schedule for hearing loss, the extraschedular provisions of 38 C.F.R. § 3.321(b)(1) did not rely exclusively on objective test results to determine whether referral for an extraschedular rating was warranted. The Court held that, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. See also Revised Disability Examination Worksheets, Fast Letter 07-10 (Department of Veterans Affairs Apr. 24, 2007); and 38 C.F.R. § 4.10. Here, though, the Veteran's May 2010 VA compensation examination occurred after these revisions to the disability examination worksheets, and the report of this evaluation reflects this audiology examiner's description of the functional effects of the Veteran's hearing loss on his occupational functioning and daily activities. The Board therefore finds that his report of these problems indicates this VA compensation examiner did elicit information from him concerning the functional aspects of this disability. This is all the regulatory provisions require. This VA examiner was not otherwise required to offer an opinion based on information not provided by the Veteran. Martinak, 21 Vet. App. at 455. Therefore, the Board concludes that the Veteran's most recent May 2010 VA audiological examination was adequate for rating purposes, as it included a puretone audiometry test and a speech discrimination test, in accordance with 38 C.F.R. § 4.85, and included an opinion by the evaluating audiologist as to the severity of the Veteran's hearing loss. Thus, as there is no indication or allegation that any other relevant evidence remains outstanding, the Board finds that the duty to assist has been met. 38 U.S.C.A. § 5103A. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation, in turn requiring the "staging" of his rating for this variance. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus is from one year before the claim for a higher rating was filed until VA makes a final decision on the claim. Id; see also 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2) . Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, this doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In rating service-connected hearing loss, disability ratings are derived from mechanical, meaning nondiscretionary, application of the Rating Schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Disability ratings for bilateral hearing loss range from 0 percent (i.e., noncompensable) to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test (Maryland CNC) and the average hearing threshold, as measured by puretone audiometric tests in the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz (Hz). The Rating Schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through level XI for profound deafness. 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). Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination) is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone average intersect. 38 C.F.R. § 4.85(b). The puretone threshold average is the sum of the puretone thresholds at 1,000, 2,000, 3,000 and 4,000 Hz, divided by 4. This average is used in all cases to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.85(d). Table VII, (Percentage Evaluations for Hearing Impairment) is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poor hearing. The percentage evaluation is located at the point where the rows and column intersect. 38 C.F.R. § 4.85(e). VA regulation also provides that in cases of exceptional patterns of hearing impairment, when the puretone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 Hz) 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). The provisions of 38 C.F.R. § 4.86(b) further provide that, when the puretone threshold is 30 decibels or less at 1,000 Hz, and 70 decibels or more at 2,000 Hz, 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. Turning now to the facts of this particular case. The report of his November 2006 VA compensation examination shows he reported difficulty understanding conversational speech. He reported a history of two surgeries on each ear to rebuild the ossicles and replace the tympanic membrane. He later had pressure equalizing tubes inserted. He reported frequent ear aches, but denied any ear infections within the previous year. He also had a history of head trauma when he hit his head on a wooden beam. According to the results of his audiogram, his puretone thresholds at the frequencies of 1000, 2000, 3000, and 4000 Hz were 65, 75, 70, and 60 in his right ear, respectively. For his left ear at these same frequencies, his puretone thresholds were 70, 65, 65, and 65, respectively. The average puretone threshold for the right ear was 67.5 decibels and 66.25 in the left ear. The controlled speech discrimination test results were 88 percent in the right ear and 84 percent in the left ear. The examiner observed that the Veteran had right flat severe hearing loss and a left flat moderately severe hearing loss. The examiner also reported that inter-test consistency was poor and that the results were consistent with a functional overlay. In reviewing the results of the November 2006 audiologic examination, under Table VI of the regulation, a Level III hearing impairment in each ear is derived, which in turn warrants a noncompensable rating under Table VII. 38 C.F.R. § 4.85. However, the hearing loss shown by this examination qualifies as an exceptional pattern of hearing impairment. 38 C.F.R. § 4.86(a). Pursuant to Table VIA of the Rating Schedule, the Veteran's hearing impairment was manifested by Level V hearing acuity in each ear. See Id., Table VIA. Using Table VII, Level V hearing acuity in each ear results in a 20 percent evaluation bilateral ear hearing impairment. See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. On a private audiological evaluation dated December 2006, puretone thresholds, at the frequencies of 500 1000, 2000, 3000, and 4000 Hz were 75, 80, 90, 80, and 75 in his right ear, respectively. For his left ear at these same frequencies, his puretone thresholds were 65, 70, 70, 75, and 60 respectively. Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 88 percent in the left ear. Another private audiological evaluation dated July 2008, revealed puretone thresholds, in decibels, at the frequencies of 500, 1000, 2000, and 4000 Hz were 70, 75, 75, and 60 in the right ear. In the left ear at the same frequencies were 60, 70, 75, and 70. Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 84 percent in the left ear. A November 2008 private audiological examination revealed puretone thresholds, at the frequencies of 500, 1000, 2000, and 4000 Hz of 75, 75, 85, and 85 decibels in the right ear; and in the left ear they were 75 at each of the frequencies. Speech audiometry revealed speech recognition ability of 60 percent in each ear Finally, a December 2010 private audiological examination revealed puretone thresholds at the frequencies of 500, 1000, 2000, 3000, and 4000 Hz were 55, 50, 65, 70, and 65 decibels. In the left ear, they were 60, 65, 75, 85, and 80 decibels. Speech audiometry revealed speech recognition ability of 72 percent in the right ear and of 80 percent in the left ear. As the type of speech discrimination test used was not specified in any of the above mentioned examination reports, the Board remanded the case in order to obtain verification from the private examiners as to the testing method that was used. Further, as two of the examinations did not contain findings at 3000 Hz, the Board requested the AMC contact the examiners and ask whether testing was conducted at 3000 Hz, and if so, the results of such, or whether testing simply was not done at that frequency. In September 2011, the examiner who conducted the July 2008 examination indicated that testing was not conducted at 3000 Hz. The audiologist also indicated that the Maryland CNC controlled speech discrimination test was not used. The audiologist who conducted the December 2010 private examination indicated that the hearing was tested at 3000 Hz, but did not acknowledge what speech discrimination test was used. The institution that performed the November 2008 private audiological private testing indicated that there were no records available. There was no response from the private institution that conducted the December 2006 private audiology examination. During a VA examination in March 2010, the Veteran's puretone thresholds in the frequencies of 1000, 2000, 3000, and 4000 Hz were 65, 65, 60, and 55 decibels in his right ear, respectively. For his left ear at these same frequencies, his puretone thresholds were 50, 55, 65, and 50 decibels, respectively. The average puretone threshold for the right ear was 61.25 decibels and 55 in the left ear. The controlled speech discrimination test results were 48 percent in the right ear and 44 in the left ear. Under Table VI of the regulation, a Level VIII hearing impairment in each ear is derived, which in turn warrants a 50 percent rating under Table VII. 38 C.F.R. § 4.85. Furthermore, the right ear hearing loss would qualify as an exceptional pattern of hearing impairment. 38 C.F.R. § 4.86(a). However, when applying the results from the March 2010 VA audiological examination to Table VIA, a level IV hearing in the right ear is obtained, less than the level VIII obtained under 38 C.F.R. § 4.85. However, based on the March 2010 results, in a May 2010 addendum, the above VA audiologist noted a discrepancy between the speech recognition and puretone findings in the March 2010 evaluation. Retesting was conducted and the VA examiner stated that the findings from the May 2010 evaluation were more accurate than the March 2010 results. Inter-test consistency was described as good, bilaterally. At the May 2010 evaluation, his puretone thresholds in the frequencies of 1000, 2000, 3000, and 4000 Hz were 50, 55, 55, and 45 decibels in his right ear, respectively. For his left ear at these same frequencies, his puretone thresholds were 40, 45, 55, and 55 decibels, respectively. The average puretone threshold for the right ear was 51.25 decibels and 48.75 in the left ear. The controlled speech discrimination test results were 76 percent in the right ear and 80 in the left ear. In reviewing the results of the May 2010 audiologic examination, under Table VI of the regulation, a Level IV hearing impairment in the right ear and Level III in the left ear is derived, which in turn warrants a 10 percent rating under Table VII. 38 C.F.R. § 4.85. The puretone thresholds do not reflect an exceptional pattern of hearing loss as contemplated by 38 C.F.R. § 4.86(a) because the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hz ) is not 55 decibels or more; and, as such, that provision is inapplicable. Additionally, an exceptional pattern of hearing loss as contemplated by 38 C.F.R. § 4.86(b) is not shown as the documented puretone threshold for the Veteran are not 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz, and thus, neither Table VI or Table VIA is applicable. 38 C.F.R. § 4.86(b). Thus, even considering when the Veteran's hearing acuity has been at its worst, he has not met the requirements for a higher rating for this disability. The Board notes that the Veteran representative argues that the Veteran has fluctuating hearing loss based on the type of ear problems he has and should be compensated accordingly; he asserts that the VA examinations do not take this into consideration, and that the private examinations show the Veteran's hearing during flare ups. Certainly, the Veteran is competent to say he has had difficulty hearing in various ways, environments and situations. 38 C.F.R. § 3.159(a)(1) and (a)(2). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Barr v. Nicholson, 21 Vet. App. 303 (2007). But, as already explained, except as contemplated in Martinak, the rating for his hearing loss disability is based on objective data (specifically, the results of his hearing tests as reflected by the audiogram findings, speech discrimination scores, etc.); so his rating is derived by the mechanical, meaning nondiscretionary, application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann, 3 Vet. App. at 345. In this case, the Veteran's hearing has been tested in accordance with the applicable legal criteria over the several past years, and thus the results are deemed to be an accurate representation of his hearing loss. And, as noted, the one VA examination in March 2010 that would provide for a greater evaluation has been deemed unreliable by the audiologist due to the inconsistent results obtained. Also, as noted, the private audiograms are not in compliance with the method of testing mandated by the applicable regulation. Further, to the extent that the representative is implying that an extraschedular award is in order, the Board notes that generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Schedular ratings are based primarily upon the average impairment in earning capacity, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it. 38 C.F.R. § 4.15. To afford justice in exceptional situations, however, an extraschedular rating may also be assignable. 38 C.F.R. § 3.321(b). The Board may not, in the first instance, assign an increased rating on an extraschedular basis, but may determine whether referral for extraschedular consideration is warranted, provided that it articulates the reasons or bases for that determination. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). This determination follows a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, the level of severity and symptomatology of a veteran's service-connected disability must be compared with the established criteria found in the rating schedule for that disability. Id. If the rating criteria reasonably describe a veteran's disability level and symptomatology, the disability picture is contemplated by the rating schedule. Therefore, the assigned schedular evaluation is adequate and no referral is required. Id. If the schedular evaluation does not contemplate the level of disability and symptomatology, and is found inadequate, the second step of the inquiry requires the Board to determine whether the exceptional disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-16. The first two steps should be undertaken by comparing the disability picture of each service-connected disability with the criteria in the rating schedule for that disability. The Board should compare the service-connected disability picture with the criteria in the rating schedule for that disability. Johnson v. Shinseki, --- Vet. App. ----, 2013 WL 1224810, Vet. App., March 27, 2013 (NO. 10-1785). Extraschedular consideration is undertaken on the basis of each individual service-connected disability. Based on this disability-by-disability approach, the Board is not required to consider whether a veteran is entitled to referral for extraschedular consideration of his service-connected disabilities on a collective basis. Id. If analysis of the first two steps shows that the rating schedule is inadequate to evaluate the disability picture and that picture shows the related factors discussed above, the final step requires that the disability be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the disability picture requires the assignment of an extraschedular rating. Thun, 22 Vet. App. 111. Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence. Moreover, the Rating Schedule provides for exceptional patterns of hearing loss which is the basis for the current rating. The Board finds that his symptomatology is adequately addressed by the evaluations assigned. Thus, his disability picture is contemplated by the rating schedule, and the assigned 20 percent schedular evaluation is, therefore, adequate. Thun, 22 Vet. App. 111. Consequently, referral for extraschedular consideration is not warranted. The Veteran simply has not met the requirements for a higher rating for this disability at any time since one year prior to the filing of this increased-rating claim, so the Board cannot "stage" his rating, either. See Hart, supra. Rather, for the reasons and bases discussed, the preponderance of the evidence is against his claim; therefore, the benefit-of-the-doubt rule is inapplicable, and his claim must be denied. 38 C.F.R. § 4.3. See also Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER The claim for a rating in excess of 20 percent for bilateral hearing loss is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs