Citation Nr: 1330213 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 12-16 993 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to an initial compensable evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran had active service from September 1950 to September 1953. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO granted entitlement to service connection for hearing loss and assigned a noncompensable rating effective from August 19, 2009. The Veteran has perfected an appeal of the assigned rating. The Veteran's virtual VA claims files contain only evidence that is duplicative of evidence in the paper claims file or irrelevant to the issue on appeal. Please note 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). FINDINGS OF FACT 1. On VA audiological testing in September 2009, the Veteran's hearing acuity was level I in the right ear and level I in the left ear. 2. On VA audiological testing in March 2010, the Veteran's hearing acuity was level I in the right ear and level IV in the left ear. 3. On VA audiological testing in May 2012, the Veteran's hearing acuity was level II in the right ear and level II in the left ear. CONCLUSION OF LAW The criteria 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. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Nevertheless, the Veteran in this case is challenging the initial evaluation assigned following the grant of service connection for bilateral hearing loss. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. See also VAOPGCPREC 8-2003 (December 22, 2003). Thus, VA's duty to notify has been satisfied with respect to the issues of entitlement to a higher initial evaluation for his bilateral hearing loss. In addition, the duty to assist the Veteran has also been satisfied in this case. All identified and available post-service medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the claim. The Veteran has not identified any outstanding records that are relevant to the issue being decided herein. The Board does acknowledge that the Veteran's service treatment records are available. The RO did attempt to obtain such records, but a response indicated that they were presumed destroyed by the fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri in 1973. There were also no (SGO) records available. The RO made a formal finding of the unavailability of the Veteran's complete service treatment records documenting all efforts undertaken, and he was notified. Moreover, the Board notes that the grant of service connection and noncompensable evaluation were assigned an effective date of August 19, 2009, which is more than 50 years after the Veteran's separation from service. Thus, the service treatment records would not pertain to the present level of severity of the disability. Accordingly, the Board concludes that any further attempts to obtain the Veteran's service treatment records would be futile in this case. The Veteran was also afforded VA audiological examinations dated in September 2009, March 2010, and May 2012. The Board finds that the VA examinations in this case are adequate, as they are predicated on a review of the Veteran's medical history as well as on an examination and fully addresses the rating criteria that are relevant to rating the disability in this case. Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Thus, there is adequate medical evidence of record to make a determination as to the Veteran's bilateral hearing loss. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). For the reasons set forth above, the Board finds that VA has complied with the notification and assistance requirements. The claim for an increased rating for bilateral hearing loss is thus ready to be considered on the merits. II. Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where a veteran appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending). The Veteran's bilateral hearing loss is currently assigned a noncompensable evaluation pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. 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. Lindenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. The rating schedule establishes 11 auditory acuity Levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. VA audiological evaluations are conducted using a controlled speech discrimination test together with the results of puretone audiometry tests. The vertical line in Table VI (printed in 38 C.F.R. § 4.85) represents nine categories of the percentage of discrimination based on a controlled speech discrimination test. The horizontal columns in Table VI represent 9 categories of decibel loss based on the puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85 and the statement of the case) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity. For example, if the better ear had a numeric designation of Level "V" and the poorer ear had a numeric designation of Level "VII" the percentage evaluation is 30 percent. See 38 C. F. R. § 4.85. Regulations also provide that in cases of exceptional hearing loss, i.e., when the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 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). 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 hertz and 70 decibels or more at 2,000, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral. That numeral will then be evaluated to the next higher Roman numeral. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a higher initial evaluation for his bilateral hearing loss. On the September 2009 VA audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 40 35 45 55 LEFT 30 25 65 65 Maryland CNC speech recognition scores were 96 percent in the right ear and 92 percent in the left ear. These audiometric findings equate to level I hearing in both ears. See 38 C.F.R. § 4.85, Table VI. When those values are applied to Table VII, it is apparent that the currently assigned noncompensable evaluation for the Veteran's bilateral hearing loss is accurate and appropriately reflects his bilateral hearing loss under the provisions of 38 C.F.R. § 4.85 . On the March 2010 VA audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 40 50 60 75 LEFT 45 40 60 60 Maryland CNC speech recognition scores were 96 percent in the right ear and 76 percent in the left ear. Using Table VI, these examination results demonstrate level I in the right ear and level IV hearing in the left ear. An application of those values to Table VII once again results in a noncompensable rating. On the May 2012 VA audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 40 55 55 LEFT 20 35 55 60 Maryland CNC speech recognition scores were 84 percent in the right ear and 84 percent in the left ear. These audiometric findings equate to level II hearing in both ears. See 38 C.F.R. § 4.85, Table VI. When those values are applied to Table VII, it is apparent that the currently assigned noncompensable evaluation for the Veteran's bilateral hearing loss is accurate and appropriately reflects his bilateral hearing loss under the provisions of 38 C.F.R. § 4.85 . The above evidence reflects that the appropriate rating for the bilateral hearing loss is noncompensable throughout the appeal period. The Veteran did not meet the criteria for a higher rating during any period involved in this appeal. There are no other audiological results of record. The Board has also considered whether an initial compensable evaluation for bilateral hearing loss is warranted under 38 C.F.R. § 4.86. However, the Veteran's disability does not meet the requirements of 38 C.F.R. § 4.86. In this regard, the available audiometric findings do not show the Veteran to have puretone thresholds of 55 decibels or more at each of the frequencies of 1,000, 2,000, 3,000 and 4,000 hertz or a puretone threshold of 30 decibels or less at 1,000 hertz and 70 decibels or more at 2,000 hertz. Thus, the Board finds that the noncompensable evaluation is appropriate and that there is no basis for awarding a higher initial evaluation. In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court addressed a challenge to VA's audiological testing practices, specifically whether VA's policy of conducting all audiometry testing of hearing-loss claimants in a sound-controlled room was valid. The Court also addressed the requirements for an adequate VA audiological examination report. The Court upheld VA's policy of conducting audiometry testing in a sound controlled room. The Court also 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. Subsequently, however, in Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1280 (Fed. Cir. 2009), the Federal Circuit indicated that, "while the effects of a disability on one's daily life are arguably relevant to a doctor conducting a medical examination, those effects are not relevant to a disability rating made by a ratings specialist," and "VA has never adopted an interpretation to the contrary." The September 2009, March 2010, and May 2012 VA examination reports contained information regarding the functional effects of the Veteran's hearing loss. In September 2009, the Veteran reported that the effects included clarity of sounds and hearing where there is background noise. His wife had also told him that he missed out on sounds. In addition, the Veteran told the March 2010 VA examiner he had the most difficulty with understanding speech and had to ask people to repeat themselves. The May 2012 VA examiner further reported that the Veteran's hearing loss did not impact the ordinary conditions of life, including his ability to work. Nevertheless, given the Federal Circuit's statement in Vazquez-Flores above, the Board finds that this information is not relevant to the rating of the Veteran's bilateral hearing loss under the schedular rating criteria. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's bilateral hearing loss is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). 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. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id.; see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, which includes difficulty hearing speech. Moreover, as discussed above, there are higher ratings available under the diagnostic code, but the Veteran's disability is not productive of such impairment. Moreover, even if the criteria do not reasonably describe the Veteran's bilateral hearing loss disability level and symptomatology, the Veteran does not claim, and the evidence does not reflect, that his bilateral hearing loss has caused marked interference with employment. There is one March 2010 record contained in the claims file that shows that the Veteran was considered for employment at a particular job, but was not hired because it required keen listening skills. This does not demonstrate marked interference with employment. Instead, the record merely shows that the Veteran could not perform one specific job due to his hearing impairment. There is no allegation or evidence to suggest that the Veteran was not able to perform numerous other jobs with his hearing impairment. In fact, the May 2012 VA examiner opined that the hearing loss had no impact on his ability to work. There is also no evidence of frequent hospitalization or that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected bilateral hearing loss under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). The preponderance of the evidence reflects that the symptoms of the Veteran's bilateral hearing loss do not more nearly approximate the criteria for a compensable rating. The benefit-of-the-doubt doctrine is therefore not for application, and the claim for an increased rating for bilateral hearing loss must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Entitlement an initial compensable evaluation for bilateral hearing loss is denied. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs