Citation Nr: 1329888	
Decision Date: 09/18/13    Archive Date: 09/25/13

DOCKET NO.  13-07 741	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUE

Entitlement to an initial compensable rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	New Jersey Department of Military and Veterans' Affairs


ATTORNEY FOR THE BOARD

L.M. Yasui, Counsel


INTRODUCTION

The Veteran served on active duty from June 1955 to March 1957.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.  

In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the Veteran's file on the Virtual VA and VBMS system to ensure a complete assessment of the evidence.

The issue of service connection for tinnitus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

For the entire period on appeal, the Veteran's bilateral hearing loss has been manifested by no more than level II hearing in the right ear and level I hearing in the left ear.


CONCLUSION OF LAW

The criteria for an initial compensable rating for bilateral hearing loss have not been met for any period.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4.14, 4.85-4.87, Diagnostic Code (DC) 6100 (2013).



REASONS AND BASES FOR FINDING AND CONCLUSION

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition.  The Board has a duty to acknowledge and consider all regulations that are potentially applicable.  Schafrath v. Derwinski,
1 Vet. App. 589 (1991).  The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required.  38 C.F.R. §§ 4.1, 4.2, 4.10.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.  Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor.  38 C.F.R. § 4.3. 

When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found.  Such separate disability ratings are known as "staged" ratings.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability).  

Ratings for service-connected hearing loss range from noncompensable (0 percent) to 100 percent for hearing loss.  These evaluations are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second.  In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  

Diagnostic Code 6100 provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment.  The hearing impairment is established by a state licensed audiologist including a controlled 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.  See 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.  The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing.  Id.  

Under 38 C.F.R. § 4.86(a), when the puretone 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 IV or Table VIa, whichever results in the higher numeral.  Each ear is to be evaluated separately.  See 38 C.F.R. § 4.86(a).  

The provisions of 38 C.F.R. § 4.86(b) provide 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.  That numeral will then be evaluated to the next higher Roman numeral.  See 38 C.F.R. § 4.86(b).

In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that, in addition to providing objective test results, a VA audiological examination report must address the functional effects caused by a hearing disability because an extraschedular evaluation under 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 Court also noted that VA's policy requiring VA audiologists to describe the effect of a hearing disability on occupational functioning and daily activities facilitates extraschedular determinations by requiring VA audiologists to provide such information.  Martinak, 21 Vet. App. at 455.  

In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses.  See Layno, 6 Vet. App. 465.  Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  

The Board has reviewed all of the evidence in the Veteran's claims file with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

The Veteran asserts that a compensable rating is warranted for bilateral hearing loss.  Specifically, he contends that the audiometric results revealed during the November 2011 VA examination do not demonstrate the full extent of the hearing loss disability.

The relevant evidence for this claim consists of the Veteran's lay statements, the VA examination report dated in November 2011, and private treatment reports.  Private treatment reports note the Veteran's audiology treatment, but do not include detailed information relevant to the bilateral hearing rating analysis under the applicable rating criteria.  The VA examination report includes more probative evidence for rating hearing loss of audiometric test scores and speech recognition test scores.  In this regard, however, the private audiology records are briefly addressed below.

For the entire period on appeal, the Board finds that the weight of the competent and probative lay and medical evidence demonstrates that a compensable initial rating for bilateral hearing loss is not warranted for any period.  The Veteran underwent a VA audiology evaluation in November 2011.  At that time, puretone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Avg.
RIGHT
10
55
55
65
46
LEFT
10
40
55
55
40

Speech audiometry in November 2011 revealed speech recognition ability of 88 percent in the right ear and 92 in the left ear.  The pertinent diagnosis was bilateral sensorineural hearing loss in the 500-4000 Hz levels.  He also reported that he has been told that he misunderstands what people say to him.

Based upon the results of the November 2011 VA audiology examination, a Roman numeral II is designated for the right ear from Table VI of 38 C.F.R. § 4.85 and a Roman numeral I is designated for the left ear.  Intersecting the numeric designations to the applicable row and column for the right and left ear, a noncompensable evaluation is derived from Table VII of 38 C.F.R. § 4.85.  The intersection point for these categories under Table VII shows that the hearing loss does not exceed the levels contemplated for a noncompensable (0 percent) schedular rating.  Thus, this audiometric evidence does not support a finding of a compensable evaluation.

As discussed above, the Veteran underwent private audiometric testing in February 2013.  The February 2013 private audiometric results do not include the puretone threshold, in decibels, of the 3000 Hz level in the left ear; therefore, complete audiometric data, including puretone averages, is not available for the left ear.  Nevertheless, the Board has considered the audiometric test scores in the remaining puretone thresholds that are available to see if, in the context of all the other findings in this case, a higher rating is warranted. 

While the private audiometric evaluations in this report do not include the puretone thresholds in numerical format, but are reported in graphical representation, the Board is able to interpret these graphical representations of audiometric data and convert it to numerical data in its role as a fact finder as long as the graphical representations are clear.  See Kelly v. Brown, 7 Vet. App. 471, 474 (1995) (noting that, because interpreting results from an audiometric graph involves fact finding, the Court is precluded from engaging in such fact finding in the first instance, and remanding in part because the Board did not discuss the results of the private audiometric testing); see also Savage v. Shinseki, 24 Vet. App. 249 (2011) (noting the Board may interpret results from a private audiometric graph, if it felt it had the expertise, and holding that the Board may not ignore such private audiometric test results that are of record).

In addition, it is unclear whether the documented speech discrimination percentages in February 2013 were obtained using Maryland CNC testing as required by regulation.  See 38 C.F.R. § 4.85(a).  However, the Board has considered if the speech discrimination percentages were derived using Maryland CNC testing, to see if the results would warrant a compensable rating and, if so, would also warrant further assistance to determine from the private audiology examiners which type of speech discrimination testing was used; however, the Board finds that even the lowest speech discrimination results (92 percent in the right ear with 92 percent in the left ear) would not warrant a compensable rating.  

At the private audiology examination in February 2013, puretone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Avg.
RIGHT
45
70
70
75
65
LEFT
40
55
N/A
65
N/A

Speech recognition scores in February 2013 were measured at 92 percent in the right ear and 92 percent in the left ear, although it is unclear whether the documented speech discrimination percentages were obtained using Maryland CNC testing as required by regulation.  See 38 C.F.R. § 4.85(a).  

Even if the Board were to assume that the February 2013 private audiological evaluation included speech discrimination percentages using Maryland CNC testing, these results would not warrant a compensable rating as a Roman numeral II is designated for the right ear from Table VI of 38 C.F.R. § 4.85.  The intersection point for the right ear at Roman numeral II (the poorer ear) and for the left ear (the better ear) under Table VII shows that the hearing loss does not exceed the levels contemplated for a noncompensable (0 percent) schedular rating.

The provisions of 38 C.F.R. § 4.86(a) (exceptional patterns of hearing impairment) do not apply during this appeal period as the audiometric results of the VA audiometric evaluation and the private audiology evaluation did not show puretone thresholds of loss of 55 decibels or greater in the four relevant frequencies for the Veteran's ears.  The provisions of 38 C.F.R. § 4.86(b) are also not applicable as both ears are not shown to manifest 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hz.

In this case, the Veteran has reported the effects of his hearing loss on his daily functioning.  Specifically, he stated that he has been told that he misunderstands what people say to him.  This description of his hearing loss must be considered in conjunction with the clinical evidence of record, as well as the pertinent rating criteria.  The VA examination report of record includes a thorough hearing examination.  While he has reported difficulty with understanding what is said to him, which has impacted social functioning, the percentage, bilaterally, of speech recognition reflects high speech discrimination ability.  

In the Notice of Disagreement, dated in December 2011, the Veteran disagreed with the findings of the VA audiological examination conducted in November 2011.  Specifically, he argued that conducting an audiological evaluation in a sound-proof room produced an inaccurate evaluation of his hearing loss disability.

In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the appellant challenged VA's policy of conducting audiological testing in a sound-controlled room.  In rejecting the appellant's challenge, the Court noted that:

[T]he appellant has offered no expert medical evidence demonstrating that an audiometry test conducted in a sound-controlled room produces inaccurate, misleading, or clinically unacceptable test results.  Nor has the appellant offered any expert medical evidence demonstrating that an alternative testing method exists and that this method is in use by the general medical community.  The appellant has simply offered his own unsubstantiated lay opinion as to the impropriety of this testing method.  The Court will not invalidate the Secretary's chosen policy on this basis.

Id. at 454.

As in Martinak, the Veteran in this case has simply offered his own unsubstantiated opinion that the audiological testing he received did not accurately measure his disability.  He has not provided the Board with any medical evidence that his test was inaccurate or with results from an alternative form of audiological testing (apart from the private audiology evaluation) which he believes are more representative of his degree of impairment.  

The hearing test is simply a basis to evaluate the nature and extent of the Veteran's hearing loss in an objective manner.  The testing does not suggest that the Veteran does not have some problems with his hearing, simply that the current hearing loss does not provide a basis to grant compensation at this level of hearing loss.  The Board has reviewed the treatment records and discussed the results in detail above, but finds no basis to award a higher rating.

Despite the Veteran's contention that his hearing loss is severe enough to warrant a compensable rating, the application of the rating schedule to the audiometric findings does not establish entitlement to a compensable disability evaluation for any period on appeal.  In short, the Board does not find evidence that the rating assigned for the Veteran's bilateral hearing loss should be rated higher for any other separate period based on the facts found during the entire appeal period.  The weight of the competent and probative lay and medical evidence of record is against an initial compensable rating during any time within the appeal period.  

For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for an initial compensable rating for bilateral hearing loss, and the claim is denied.  Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application.

Next, the Board also has considered whether referral for extraschedular consideration is warranted.  An extraschedular rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1) (2013); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's 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 a 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 the Veteran's disability picture requires the assignment of an extraschedular rating.  

The Board finds that the symptomatology and impairment caused by the Veteran's hearing loss disability, throughout the appeal period, is contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required.  The schedular rating criteria provide for ratings based on audiometric evaluations, to include speech discrimination testing.  

The Board recognizes and has considered the Veteran's reports of increased hearing impairment resulting in less social functioning, which is associated with bilateral hearing loss.  The schedular rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns which are not demonstrated in this case, and as measured by both audiological testing and speech recognition testing.  Speech recognition is a schedular rating criterion that recognizes an inability to understand certain words in conversation, and in turn, the impacts of that impaired ability on functioning, both daily (social) and occupational.  

As discussed above, the evidence regarding functional impairment has been considered.  For these reasons, the Board finds that the schedular rating criteria in this case are adequate to rate the Veteran's bilateral hearing loss disability; therefore, the Board has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted.

Next, the Board has considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU), as recognized in Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised by the Veteran or the evidence in this case, but finds that a TDIU claim has not been raised.  In this case, he has not reported or contended that he is unable to work specifically due to his hearing loss disability and, while the November 2011 VA examiner found that hearing loss had an impact on occupation (including ordinary conditions of daily life), the examiner did not conclude that the Veteran was unemployable as a result of the hearing loss disability.  Thus, the record demonstrates that he has not claimed to be unemployable due to his bilateral hearing loss.  For this reason, a TDIU claim is not raised by the record in this case.

Finally, the Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  

The Veteran was advised of VA's duties to notify and assist in the development of the claims prior to initial adjudication.  An October 2011 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing.  The October 2011 notice letter also informed him as to how ratings and effective dates are assigned.

Concerning the appeal for a higher initial rating, because it is an appeal that arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for bilateral hearing loss, no additional notice is required.  The Courts have held that, once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App.112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement).

With regard to the duty to assist, the Veteran's service treatment records and pertinent post-service treatment records, including private treatment reports, have been secured.  The RO arranged for a VA audiometric examination in November 2011.  This examination is found to be adequate for rating purposes of the issue.  The examiner reviewed the Veteran's medical history and complaints, made clinical observations, and rendered opinions regarding the severity of the disability.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes).

As such, VA has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case.  The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal.  Mayfield at 1328.  Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claim.




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ORDER

An initial compensable rating for bilateral hearing loss is denied.



____________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs