Citation Nr: 1330712	
Decision Date: 09/25/13    Archive Date: 09/30/13

DOCKET NO.  09-08 412	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to an initial compensable disability rating for bilateral hearing loss prior to March 4, 2010, and a rating in excess of 10 percent since. 


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

A. Spector, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1959 to May 1960, October 1960 to September 1969, and January 1972 to February 1982.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which granted service connection for bilateral hearing loss and assigned a noncompensable disability rating, effective July 27, 2007.  The Veteran filed a notice of disagreement (NOD) with this determination in December 2007, and timely perfected his appeal in March 2009.

Subsequently, in a January 2011 rating decision, the RO increased the Veteran's disability rating for bilateral hearing loss to 10 percent, effective March 4, 2010.

On the March 2009 Substantive Appeal, the Veteran requested a Board hearing at his local RO, and that hearing was scheduled for February 14, 2013.  However, prior to the scheduled hearing date, the Veteran submitted a February 2013 written statement withdrawing that hearing request.  38 U.S.C.A. § 20.704(d) (2012).   Additionally, the Veteran's representative requested that a decision be made with the evidence available. 

The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claim.  A review of the documents in such file reveal that there are additional VA treatment records related to the Veteran's claim on appeal.  These records have been reviewed and considered by the Board.


FINDINGS OF FACT

1.  Throughout the pendency of the appeal, the Veteran's hearing acuity is currently no worse than Level V in the right ear and no worse than Level IV in the left ear. 

2.  The competent and probative medical evidence of record does not show that the Veteran's service-connected bilateral hearing loss is so exceptional or unusual that referral for extraschedular consideration by designated authority is required.


CONCLUSIONS OF LAW

1.  The criteria for an initial 10 percent disability rating, but no higher, for bilateral hearing loss prior to March 4, 2010, have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 (2012). 

2.  The criteria for an increased disability rating in excess of 10 percent for bilateral hearing loss since March 4, 2010, have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 (2012).

3.  Application of the extraschedular rating provisions is not warranted in this case.  38 C.F.R. § 3.321(b) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 U.S.C.A. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA 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 in accordance with 38 C.F.R. § 3.159(b)(1).  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The Veteran's claims arise from his disagreement with the initial evaluation assigned following the grant of service connection for his claimed disabilities noted above.  Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), Goodwin v. Peake, 22 Vet. App.  128, 134 (2008), Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, no further notice is required for these claims.   

VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  This duty includes assisting with the procurement of relevant records, including pertinent treatment records, and providing an examination when necessary.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The VA has also done everything reasonably possible to assist the Veteran with respect to his claim for benefits, such as obtaining private and VA medical records and providing the Veteran with VA examinations in September 2007 and June 2010.  In August 2012, the Veteran indicated that he did not have any additional evidence regarding his appeal.  As the Veteran has not indicated that he has received additional treatment for the issue on appeal, the Board thus concludes that there are no additional treatment records outstanding with respect to this claim.  Additionally, in  February 2013 statement, the Veteran's representative requested that a decision be made with the evidence available. Consequently, the duty to notify and assist has been satisfied as to the claim now being finally decided on appeal.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). 

II. Initial Increased Ratings

Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012).  Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).

Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity.  Separate diagnostic codes identify the various disabilities.  38 C.F.R. § Part 4 (2012).  Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).

In Fenderson v. West, 12 Vet. App 119 (1999), the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case (such as this one) in which the Veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected.  VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating."

In general, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).

The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of 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.  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.  See 38 C.F.R. § 4.85 (2012).

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 VI or Table VIa, whichever results in the higher numeral.  See 38 C.F.R. § 4.86(a) (2012).

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.  Each ear will be evaluated separately.  See 38 C.F.R. § 4.86(b) (2012).  

In determining whether the Veteran is entitled to a compensable disability rating  prior to March 4, 2010, the Board has reviewed VA and private treatment records, and the September 2007 VA examination report.  Based on this evidence, the Board finds that the Veteran is entitled to an increased disability rating of 10 percent prior to March 4, 2010.  However, after reviewing the additional evidence of record, to include the June 2010 VA examination report, the Board finds that the Veteran is not entitled to a disability rating in excess of 10 percent since March 4, 2010.

In June 2007, the Veteran underwent private audiological testing.  The audiogram contained uninterrupted graphic representations of audiometric data, which the Board as fact finder may interpret.  See Ponder v. Shinseki, No. 09-0881, 2010 WL 4241571, at *3 (Vet. App. Oct. 28, 2010) (unpublished single-judge disposition) (noting that in Kelly v. Brown, 7 Vet. App. 471 (1995), the Court determined that it could not interpret the results of an audiograph because interpretation required a factual finding, which was not the role of the Court in the first instance; the Board, however, was empowered to make factual findings in the first instance); see also Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (a non-precedential decision may be cited for any persuasiveness or reasoning it contains).  The Veteran's pure tone thresholds, in decibels, were interpreted as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
30
40
70
95
LEFT
35
35
55
75
95

The averages were 58.8 in the right ear and 65 in the left ear.  Speech recognition ability was measured as 72 percent in the right ear and 80 percent in the left ear.   The examiner noted that the VA-prescribed Maryland CNC speech recognition test was utilized during testing.  See 38 C.F.R. § 4.85(a) (2012).  

With respect to the Veteran's right ear, applicable law provides that an average pure tone threshold of 58.8 decibels along with speech discrimination of 72 percent warrants a designation of Roman Numeral V under Table VI of 38 C.F.R. § 4.85.  With respect to his left ear, the average pure tone threshold of 65 decibels along with speech discrimination of 80 percent warrants a designation of Roman Numeral IV under Table VI of 38 C.F.R. § 4.85.  Under Table VII of 38 C.F.R. § 4.85, where the right ear is Roman Numeral V, and the left ear is Roman Numeral IV, the appropriate rating is 10 percent under Diagnostic Code 6100.  

The Veteran was first afforded a VA audiological examination in September 2007.  The Veteran reported having difficulty hearing and understanding conversations in all environments, especially in noise.  He stated that he was not currently receiving treatment for this condition.  The Veteran's pure tone thresholds, in decibels, were assessed as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
35
45
75
95
LEFT
30
40
60
80
95

The averages were 62.5 in the right ear and 68.6 in the left ear.  Speech recognition ability was measured as 84 percent in both ears using the VA-prescribed Maryland CNC speech recognition test.  See 38 C.F.R. § 4.85(a) (2012).  

With respect to the Veteran's right ear, applicable law provides that an average pure tone threshold of 62.5 decibels along with speech discrimination of 84 percent warrants a designation of Roman Numeral III under Table VI of 38 C.F.R. § 4.85.  With respect to his left ear, the average pure tone threshold of 68.6 decibels along with speech discrimination of 84 percent warrants a designation of Roman Numeral III under Table VI of 38 C.F.R. § 4.85.  Under Table VII of 38 C.F.R. § 4.85, where the right ear is Roman Numeral III, and the left ear is Roman Numeral III, the appropriate rating is 0 percent under Diagnostic Code 6100.  

The record contains an April 2009 VA audiology consult.  The Veteran was noted to have mild to profound sensorineural hearing loss at 250 to 8000 Hz.  Hearing aids were ordered at that time.  Audiological test results taken at that time were not included in the record.  

The Veteran was afforded another VA audiological examination in June 2010.  The Veteran reported that he had problems with conversations without his hearing aids.  He had to ask people to repeat themselves.  The Veteran's pure tone thresholds, in decibels, were assessed as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
40
50
75
95
LEFT
35
40
55
80
95

The averages were 65 in the right ear and 67.5 in the left ear.  Speech recognition ability was measured as 76 percent in the right ear and 78 percent in the left ear using the VA-prescribed Maryland CNC speech recognition test.  See 38 C.F.R. § 4.85(a) (2012).  

With respect to the Veteran's right ear, applicable law provides that an average pure tone threshold of 65 decibels along with speech discrimination of 76 percent warrants a designation of Roman Numeral IV under Table VI of 38 C.F.R. § 4.85.  With respect to his left ear, the average pure tone threshold of 67.5 decibels along with speech discrimination of 78 percent warrants a designation of Roman Numeral IV under Table VI of 38 C.F.R. § 4.85.  Under Table VII of 38 C.F.R. § 4.85, where the right ear is Roman Numeral IV, and the left ear is Roman Numeral IV, the appropriate rating is 10 percent under Diagnostic Code 6100.  

The Board is cognizant that the Veteran's VA medical records show that he complained of hearing difficulty.  Those medical records, however, do not contain any audiological findings that would entitle the Veteran to a higher rating for his bilateral hearing loss under 38 C.F.R. § 4.85 or 38 C.F.R. § 4.86.  

Additionally, throughout appeals period, the Veteran's puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) were not 55 decibels or more.  Therefore, the Veteran does not demonstrate an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86.  Furthermore, the Veteran's puretone threshold was not assessed at 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  Therefore, the alternate method of rating exceptional patterns of hearing under 38 C.F.R. § 4.86 also does not apply to the Veteran. 

All reasonable doubt has been resolved in favor of the Veteran in making this decision.  The Board has found that the Veteran has met the necessary requirements for a 10 percent disability rating for his bilateral hearing loss at the June 2007 private audiological examination noted above.  Therefore, the evidence is for the assignment of a higher 10 percent disability rating prior to March 4, 2010 for the Veteran's bilateral hearing loss.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

The June 2010 VA examination results noted above show that the Veteran's audiological test results warrant a 10 percent disability rating.  Therefore, the Veteran is not entitled to an increased disability rating in excess of 10 percent since March 4, 2010.  To the extent that the Veteran has contended that his bilateral hearing loss is more severely impaired than the 10 percent rating assigned, the preponderance of the evidence is against the claim; and the benefit of the doubt doctrine is not applicable.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

The above determination is based upon consideration of applicable rating provisions.  In Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the Court noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities.  See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2011).  The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing loss disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  

The Martinak case does not compel or require the assignment of an increased or compensable evaluation for functional impairment attributable to hearing loss. The fact remains that numeric designations and hence disability evaluations, are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85 , without resort to subjective interpretation.  See Acevedo-Escobar v. West, 12 Vet. App. 9, 10   (1998); Lendenmann v. Principi, 3 Vet. App. 345, 349   (1992).  In this case, such mechanical application warrants the assignment of an initial 10 percent rating for bilateral hearing loss and no more. 

The September 2007 and June 2010 VA audiological examiner discussed the effects of the Veteran's bilateral hearing loss.  At the September 2007 VA examination, the Veteran reported such impairment of having difficulty hearing and understanding conversations in all environments, especially in noise.  On the March 2009 Substantive Appeal, the Veteran reported that he had trouble hearing the TV and used an audio amplifier.  He also reported that he did not always hear his wife or other family members, or at work.  He was told by his audiologist that he needed hearing aids.   VA treatment records show that the Veteran was subsequently fitted for hearing aids.  Additionally, at the June 2010 VA examination, the Veteran reported that he had problems with conversation without his hearing aids; he had to ask people to repeat themselves.   

However, to the extent that the VA examination report did not include a discussion of the effects of the Veteran's hearing loss disability on occupational functioning, the Board finds no prejudice to the Veteran as a result of this omission.  The Veteran (1) alleged no such prejudice and (2) stated on more than one occasion during the pendency of the claim the effects of his bilateral hearing loss disability on occupational functioning and daily life.  Thus, any error on the part of the VA examiners in failing to address the effects of the Veteran's hearing loss disability on occupational functioning and daily life in the examination report is harmless.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

III.  Extraschedular Consideration

The rating schedule represents, as far as is practicable, the average impairment of earning capacity.  Ratings will generally be based on average impairment.  38 C.F.R. § 3.321(a), (b).  To afford justice in exceptional situations, an extraschedular rating can be provided.  38 C.F.R. § 3.321(b).

In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, the RO or 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 Veteran'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 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 Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

The symptoms associated with the Veteran's bilateral hearing loss, to include difficulty with conversation and hearing the TV, are not shown to cause any impairment that is not already contemplated by the rating criteria, and the Board finds that the rating criteria reasonably describe his disability.  For this reason, referral for consideration of an extraschedular rating is not warranted for this claim.  


ORDER

Entitlement to an initial disability rating of  10 percent, but no higher, for bilateral hearing loss prior to March 4, 2010, is granted.

Entitlement to an increased disability rating in excess of 10 percent for bilateral hearing loss since March 4, 2010, is denied. 




____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs