Citation Nr: 1330698 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 08-36 197 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Veteran represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from July 1977 to July 1981. This matter comes before the Board of Veterans' Appeals (Board) from a May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) above which, in pertinent part, granted service connection for bilateral hearing loss and assigned a noncompensable disability rating, effective January 31, 2007. The Board notes that the May 2008 rating decision also granted an initial, noncompensable disability rating for service-connected left arm residual scar, and denied service connection for bilateral knee arthritis and esophageal cancer. While these issues were perfected for appeal (in addition to the increased rating claim for bilateral hearing loss), the Board notes that the Veteran withdrew his appeal as to the issues of service connection for bilateral knee arthritis and esophageal cancer and entitlement to an increased rating for service-connected left arm scar. See April 2013 VA Form 21-4138. Accordingly, in a June 2013 decision, the Board dismissed the appeal as to the issues of service connection for bilateral knee arthritis and esophageal cancer and entitlement to an increased rating for service-connected left arm scar. In that decision, however, the Board remanded the claim for an initial compensable rating for bilateral hearing loss for additional evidentiary development. As will be discussed further herein, all requested development has been conducted and the appeal has been returned to the Board for adjudication. The record further reflects that the Veteran initially requested a Board hearing before a Veterans Law Judge sitting at the RO, but subsequently withdrew this request in writing in April 2013. 38 C.F.R. § 20.704(e) (2012). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal with the exception of VA treatment records dated through July 2013, which were considered by the agency of original jurisdiction (AOJ) in the August 2013 supplemental statements of the case. FINDING OF FACT For the entire appeal period, the Veteran's bilateral hearing loss is manifested by no worse than Level I hearing in the right ear and no worse than Level I hearing in the left ear. CONCLUSION OF LAW For the entire appeal period, the criteria for a compensable initial rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100, and Tables VI, VII (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice must inform the claimant of any information and 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)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. The Board observes that the Veteran has appealed with respect to the propriety of the initially assigned rating for his bilateral hearing loss disability from the original grant of service connection. VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). In this case, the Veteran's claim for service connection for his bilateral hearing loss disability was granted and an initial rating was assigned in the May 2008 rating decision on appeal. Therefore, as the Veteran has appealed with respect to the initially assigned rating, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Relevant to the duty to assist, the Veteran's service treatment records, post-service VA treatment records, and records from the Social Security Administration (SSA) have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. In this regard, the Board notes that the Veteran previously reported having an audiogram conducted at VA in conjunction with a fitting for hearing aids in either June or July 2012. Following the June 2013 Board remand, the RO/AMC obtained all VA outpatient treatment records dated from December 2011 to the present, which show the Veteran was fitted for hearing aids in November 2012 and included a report of an audiogram conducted in September 2012. There is no indication that an audiogram was conducted by VA in June or July 2012. Therefore, the Board concludes that all relevant evidence is associated with the record. Additionally, the Veteran was afforded VA examinations in April 2008 and July 2013 to evaluate his bilateral hearing loss. Neither the Veteran nor his representative has alleged that such examinations are inadequate for rating purposes. Moreover, the Board finds that the examinations are adequate to evaluate the Veteran's service-connected bilateral hearing loss as they include an interview with the Veteran, an accurate summary of the history, audiometric testing, and an ontological examination that addressed the relevant rating criteria. In this regard, the Board notes that, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that, relevant to VA audiological examinations, 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. In this regard, the Board finds that the VA examiners addressed the functional effects resulting from the Veteran's bilateral hearing loss. Specifically, at the April 2008 VA examination, the examiner noted that the Veteran's mild loss of hearing combined with his excellent speech recognition ability would allow him to communicate effectively in most employment situations and in activities of daily living. In July 2013, the VA examiner observed that the Veteran had difficulty understanding speech in most situations without the use of his hearing aids. Therefore, the Board finds that the VA examinations of record fully describe the functional effects caused by the Veteran's bilateral hearing loss disability in accordance with Martinak, supra. As such, the Board finds that the examinations of record are adequate to adjudicate the Veteran's increased rating claim and no further examination is necessary. As indicated in the Introduction, in June 2013, the Board remanded the case for additional development. Specifically, the Board directed the AOJ to provide the Veteran and his representative an opportunity to submit any additional evidence, to include that referenced in a January 2013 statement, which was accomplished by way of a June 2013 letter. Additionally, the Board ordered that SSA and VA records be obtained, and such records were subsequently associated with the Veteran's claims file. Finally, the Veteran was afforded a contemporaneous VA examination in July 2013 in accordance with the Board's remand directives. Therefore, the Board finds that the AOJ has substantially complied with the June 2013remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the 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 rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. Fenderson v. West, 12 Vet. App. 119 (1999). Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, Table VIA, in exceptional cases as described in 38 C.F.R. § 4.86 , and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. The evidentiary record contains VA audiological examinations conducted in April 2008 and July 2013, as well as a report of an audiogram conducted at a VA outpatient visit in September 2012, which are considered the most competent, reliable, and probative evidence of record as they contain audiograms reflecting pure tone thresholds and the Maryland CNC speech recognition test. The results of the April 2008 VA examination indicate there was an average pure tone threshold in the Veteran's left ear of 38 decibels, with speech recognition of 94 percent, while the average pure tone threshold in the right ear was 29 decibels, with speech recognition of 96 percent. Evaluating these test scores using Table VI shows that the Veteran's hearing acuity is at Level I in his left and right ear, which results in a noncompensable (zero percent) disability rating under Table VII. See 38 C.F.R. § 4.85, Diagnostic Code 6100. The results of the audiogram conducted in September 2012 indicate there was an average pure tone threshold in the Veteran's left ear of 52.5 decibels, with speech recognition of 100 percent, while the average pure tone threshold in the right ear was 33.75 decibels, with speech recognition of 100 percent. Evaluating these test scores using Table VI shows that the Veteran's hearing acuity is at Level I in his left and right ear, which results in a noncompensable (zero percent) disability rating under Table VII. See 38 C.F.R. § 4.85, Diagnostic Code 6100. The results of the July 2013 VA examination indicate there was an average pure tone threshold in the Veteran's left ear of 52 decibels, with speech recognition of 94 percent, while the average pure tone threshold in the right ear was 40 decibels, with speech recognition of 96 percent. Evaluating these test scores using Table VI shows that the Veteran's hearing acuity is at Level I in his left and right ear, which results in a noncompensable (zero percent) disability rating under Table VII. See 38 C.F.R. § 4.85, Diagnostic Code 6100. The Board has also considered the Veteran's service-connected hearing loss under 38 C.F.R. § 4.86, for exceptional patterns of hearing impairment. However, the audiometric evidence of record does not show that the Veteran's bilateral hearing loss fits the requirements of an unusual pattern of hearing impairment, as pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz are not 55 decibels or more, and the pure tone threshold is not 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. Therefore, 38 C.F.R. § 4.86 is not for application in this case. In summary, the most competent and probative evidence of record shows the Veteran's service-connected bilateral hearing loss, as reflected on Table VII of 38 C.F.R. § 4.85, is not entitled to a compensable disability rating. Indeed, the competent and probative evidence of record does not reflect that the Veteran's hearing impairment is manifested by the level of severity needed to be compensable under the rating criteria. To the extent that the Veteran contends that his hearing loss is more severe than currently evaluated, the Board observes that the Veteran, while competent to report symptoms such as difficulty understanding speech in most situations without the use of his hearing aids, he is not competent to report that his hearing acuity is of sufficient severity to warrant a 10 percent or greater evaluation under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to have. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Despite the foregoing, the Board acknowledges the Veteran's reports of the difficulty understanding speech in most situations without the use of his hearing aids. Even after considering such contentions as to the effects of the disability on his daily life, the Board finds that the criteria for a compensable evaluation are not met. See Lendenmann, supra (assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered). The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected bilateral hearing loss; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if 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 application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that 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. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant'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 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. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected bilateral hearing loss with the established criteria found in the rating schedule. The Board notes that the Veteran has described the functional impairment he experiences as a result of bilateral hearing loss, to include difficulty understanding speech in most situations without the use of his hearing aids. However, the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by Veterans with certain degrees and types of hearing disability. In support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86. In this regard, the rating criteria for hearing loss were last revised, effective June 10, 1999. See 64 Fed. Reg. 25206 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these Veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of Veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of Veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17295 (April 12, 1994). Accordingly, the Board finds that functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria. Consequently, the Board finds that the Veteran's bilateral hearing loss symptomatology is fully addressed by the rating criteria under which his disability is rated. There are no additional symptoms of his bilateral hearing loss that are not addressed by the rating schedule. The Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology for his service-connected disability. The rating schedule is adequate to evaluate the Veteran's disability picture. Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the evidence reflects that the Veteran is unemployable;however, it does not show that such is the result of his service-connected bilateral hearing loss. Specifically, SSA records reflect that the Veteran's primary disabilities were related to back and psychiatric disorders, and an April 2009 decision reflects that the Veteran has not been determined to be disabled for SSA purposes. Moreover, the April 2008 VA examiner noted that the Veteran's mild loss of hearing combined with his excellent speech recognition ability would allow him to communicate effectively in most employment situations and in activities of daily living. Additionally, the July 2013 VA examiner found that the Veteran only had difficulty understanding speech without the use of his hearing aids. Therefore, the Board finds that the issue of entitlement to a TDIU is not expressly raised by the Veteran or reasonably raised by the record and, consequently, further consideration of such is not necessary. The Board has also considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for an initial compensable rating for his bilateral hearing loss. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his increased rating claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER An initial compensable rating for bilateral hearing loss is denied. ____________________________________________ A.JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs