Citation Nr: 1330630 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 09-19 467 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial compensable evaluation for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1983 to December 1985. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified at a Board hearing at the RO in August 2012 in Houston, Texas. This transcript has been associated with the file. The case was brought before the Board in September 2012, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his appeal, to include affording the Veteran a new VA examination. The Veteran was afforded a VA audiological examination in November 2012. Therefore, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). FINDING OF FACT The Veteran's audiometric examination corresponds to no more than a level II for the left ear and a level I for the right ear. CONCLUSION OF LAW The criteria for a compensable evaluation for a bilateral hearing loss disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA 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, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Prior to the initial rating decision in this matter, a June 2007 letter informed the Veteran of all five elements of service connection, gave examples of the types of evidence the Veteran could submit in support of his claim, and provided notice of the Veteran's and VA's respective responsibilities for obtaining such evidence. Therefore, the duty to notify has been satisfied. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Goodwin v. Peake, 22 Vet. App. 128, 136 (2008) (holding 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 proven and thus section 5103(a) notice is no longer required because the purpose that the notice is intended to serve has been fulfilled). The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was done in this case. The Veteran's service treatment records and VA treatment records are in the file. The Veteran has not indicated that there are any additional outstanding records to be obtained. The duty to assist with obtaining medical records has been satisfied. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). The Veteran was afforded a VA medical examination most recently in November 2012 to determine the severity of his bilateral hearing loss disability. This opinion was rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file. The examiner obtained an accurate history. The examiner provided a detailed explanation for the opinions that were reached. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorder 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. Therefore, the Board finds that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Increased Rating Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran contends that his bilateral hearing loss disability should be awarded a higher evaluation throughout the appeal period. For the reasons discussed below, the Board finds no higher evaluation is appropriate. The ratings schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations of hearing impairment in both ears. See 38 C.F.R. § 4.85, Diagnostic Code 6100. When the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIA is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Additionally when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIA is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86(b) (2012). The Veteran was given an audiogram at his VA examination in August 2007. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVERAGE LEFT 40 60 65 75 60 RIGHT 25 50 60 65 50 The Veteran reported his current symptoms included that he was unable to hear the phone ringing and he had problems falling asleep due to tinnitus. Speech audiometry revealed speech recognition ability of 96 percent in the left ear and 96 percent in the right ear. Using these results and entering the average pure tone threshold and speech recognition ability into Table VI reveals the highest numeric designation for hearing impairment for the left ear is II and for the right ear is I. Entering both the category designations for each ear into Table VII results in a noncompensable disability rating under Diagnostic Code 6100. The Veteran was afforded a VA examination in November 2011. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVERAGE LEFT 35 60 65 80 60 RIGHT 30 35 60 65 48 The Veteran reported problems understanding conversations, especially where there was background noise. Speech audiometry revealed speech recognition ability of 100 percent in the left ear and 100 percent in the right ear. Using these results and entering the average pure tone threshold and speech recognition ability into Table VI reveals the highest numeric designation for hearing impairment for the left ear is I and for the right ear is I. Entering both the category designations for each ear into Table VII results in a noncompensable disability rating under Diagnostic Code 6100. The Veteran was afforded a VA examination in November 2012. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVERAGE LEFT 20 50 60 70 50 RIGHT 15 30 50 60 39 The Veteran reported problems at work because he could not hear the phone ring. He also reported difficulty hearing when someone whispered or if there was background noise. See also June 2012 statement of Veteran's employer. Speech audiometry revealed speech recognition ability of 94 percent in the left ear and 96 percent in the right ear. Using these results and entering the average pure tone threshold and speech recognition ability into Table VI reveals the highest numeric designation for hearing impairment for the left ear is I and for the right ear is I. Entering both the category designations for each ear into Table VII results in a noncompensable disability rating under Diagnostic Code 6100. The Board is aware of the Court's decision in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) which 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. While not argued by the Veteran's representative, the VA examination reports document the Veteran's complaints of the functional effects of his bilateral hearing loss. The November 2012 report specifically noted the Veteran's complaints of difficulty hearing the phone ring and problems hearing when someone whispered. See also August 2007 VA examination report. The Veteran also testified at his August 2012 Board hearing that he had problems at work because he did not hear the phone ring when other employees were trying to get in touch with him. The Board acknowledges the Veteran's statements that his bilateral hearing loss disability warrants an increased disability evaluation throughout the appeal period. The Board has considered the Veteran's statements that his hearing loss has worsened and that he has problems both at work and in normal conversations. The Veteran is competent to report matters of which he has personal knowledge, such as difficulty hearing when there is background noise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); 38 C.F.R. § 3.159(a)(2). However, as a layman without the appropriate medical training and expertise, the Veteran is not further competent to provide a probative (persuasive) opinion on a medical matter, especially the severity of his bilateral hearing loss disability in relation to the applicable rating criteria. Medical examiners, including the VA compensation examiner, have conducted objective audiograms to measure the severity of the Veteran's hearing loss disability. The rating criteria determination is multi-factorial, not just predicated on lay statements and other testimony, rather, all of the relevant medical and other evidence. The Federal Circuit Court has recognized the Board's 'authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence.' Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In sum, the Board finds that there is no probative audiological evidence of record to support an increased rating for the Veteran's bilateral hearing loss disability at any time during this appeal period. The preponderance of the evidence is against the Veteran's claim for a higher rating. Consequently, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Extra-Schedular Consideration There is no evidence of exceptional or unusual circumstances to warrant referring this claim for extra-schedular consideration. 38 C.F.R. § 3.321(b)(1). The Court has clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a determination of whether the evidence presents such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, there must be a determination of whether the Veteran's exceptional 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 related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating under 38 C.F.R. § 3.321(b)(1). The Veteran's service-connected hearing loss is appropriately evaluated. His primary symptom is hearing loss. All of his symptoms are accounted for in the regular schedular rating criteria. According to 38 C.F.R. § 4.1, 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. Indeed, in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the Court reiterated this, noting the disability rating, itself, is recognition that industrial capabilities are impaired. As the assigned schedular evaluation for the service-connected bilateral hearing loss is adequate, referral for an extra-schedular rating is unnecessary. Thun, supra. Furthermore, there is no evidence of any exceptional or unusual circumstances, such as frequent hospitalizations, suggesting he is not adequately compensated for this disability by the regular Rating Schedule. Extra-schedular referral is not warranted under the circumstances presented. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). ORDER Entitlement to an initial compensable evaluation for a bilateral hearing loss disability is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs