Citation Nr: 1331654	
Decision Date: 10/02/13    Archive Date: 10/07/13

DOCKET NO.  10-25 573	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to an increased (compensable) disability rating (evaluation) for left ear hearing loss.


ATTORNEY FOR THE BOARD

J. Schulman, Associate Counsel


INTRODUCTION

The Veteran, who is the appellant in this case, had active service from February 1969 to February 1973.
      
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied an increased rating for previously service-connected left ear hearing loss.  The Veteran appealed the denial in this decision, and the matter is now before the Board. 
 
A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal that are not already of record.

In a March 2008 notice of disagreement, the Veteran referenced service-connected tinnitus, which is currently rated 10 percent disabling - the maximum schedular rating available for tinnitus.  A 10 percent rating is the maximum schedular rating provided for tinnitus, regardless of severity and regardless of whether it is in one or both ears.  See Smith v. Nicholson, 451 F.3d 1344, 1349 (Fed. Cir. 2006) (upholding VA regulations 38 C.F.R. § 4.25(b) and Diagnostic Code 6260, which limit a veteran to a single disability rating for tinnitus, regardless whether the tinnitus is unilateral or bilateral).  For this reason, the Board finds no claim, implied or expressed, has been raised for an increased rating for tinnitus.


FINDING OF FACT

Throughout the entire rating period, left ear hearing loss has been productive of average pure tone air conduction threshold at 1,000, 2,000, 3,000, and 4,000 Hertz of no worse than 46 decibels, and speech recognition ability using Maryland CNC testing of 94 percent.


CONCLUSION OF LAW

The criteria for a rating in excess of zero percent for left ear hearing loss have not been met or more nearly approximated at any time during the rating period on appeal.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.85, Diagnostic Code 6100, 4.86 (2013).



REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (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 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 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, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013).

VCAA notice should 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); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In this case, the RO provided a VCAA notice letter to the Veteran in July 2007, prior to the initial adjudication of the increased rating claim.  The letter notified the Veteran of what information and evidence must be submitted to substantiate the claim, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA.  The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claim to the RO.  The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).

For an increased-compensation claim, the US Court of Appeals of Veterans Claims (the Court) has held that 38 U.S.C.A. § 5103(a) required, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009).  Here, such notice was provided in the July 2007 VCAA notice letter.  Based on the foregoing, timely and adequate notice was provided to the Veteran prior to the transfer and certification of this case to the Board and complied with the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b).

Next, VA has a duty to assist a veteran in the development of the claim.  To that end, VA must make reasonable efforts to assist the claimant 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.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013); see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim").  In this case, service records have been obtained, as have records of private and VA treatment.  These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issue before the Board.

The Veteran was afforded a VA examination in April 2012, during which the examiner conducted a physical examination of the Veteran, took down the Veteran's relevant history, considered the lay evidence presented, laid a factual foundation for the conclusions reached, and reached conclusions and offered opinions based on history and examination that are consistent with the record.  While the VA examiner was not provided the Veteran's claims file for review, an accurate history was elicited from the Veteran regarding left ear hearing loss.  See VAOPGCPREC 20-95 (interpreting that in some cases an accurate history by a veteran may be a valid basis for an examination report rather than claims file review); see also Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran).  Furthermore, the examiner conducted the audiometric testing needed in order to properly assess the Veteran's current level of disability for rating purposes.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  38 C.F.R. § 3.159(c)(4) (2013); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion).

The Board finds that all necessary development has been accomplished.  In addition to the evidence discussed above, the Veteran's statements in support of the claim are or record.  The Board has carefully considered such statements and concludes that no available outstanding evidence has been identified.  Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.  For these reasons, the Board finds that the duties to notify and assist the Veteran in the development of this claim have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

Increased Rating for Left Ear Hearing Loss

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the 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 (2013).  

When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3.  If two evaluations are potentially applicable, the higher evaluation 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.

The Veteran was previously awarded service connection and assigned an initial disability rating for left ear hearing loss in a rating decision of March 2002.  An appeal of the initial rating is not before the Board; rather the Veteran seeks in increased rating.  On a claim for increased 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.  In Hart v. Mansfield, the Court extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings."  Hart v. Mansfield, 21 Vet. App. 505, 511 (2007).  Here, as the evidence discussed below shows, the disability has not significantly changed and a uniform evaluation is warranted.

In the October 2007 rating decision on appeal, the Veteran's noncompensable evaluation for left ear hearing loss was continued, as effective April 30, 2001.  The Veteran's disability is rated under 38 C.F.R. § 4.85, Diagnostic Code (DC or Code) 6100 (2013).  Under this Code, hearing impairment evaluations are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Lendenmen v. Principi, 3 Vet. App. 345, 349 (1992).  The ratings schedule provides a table for ratings 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 for hearing impairment in both ears.  See 38 C.F.R. § 4.85.  Where the impaired hearing being rated is only in one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383 (2013).  38 C.F.R. § 4.85(f).

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, 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 puretone 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) (2013).

The Board has reviewed all of the lay and medical evidence in the claims folder and finds that the Veteran is competent to report difficulty hearing as this is a lay- observable symptom.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (holding that lay statements may serve to support a claim by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability that are susceptible of lay observation).  The Board has not discounted any lay evidence regarding the severity of the Veteran's left ear hearing loss merely because it is lay evidence or because it was reported by the Veteran.  See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (holding that a history given by a veteran that has not been found by the Board to be inaccurate is not a basis for discounting an opinion based on that history).  That being said, the Board has an obligation to determine the credibility of all evidence, lay and medical.  See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight to be given to the evidence).

The Veteran contends that left hear hearing loss has been compensably disabling, and in a May 2010 statement the Veteran specifically requested at least a 20 percent rating.  The Veteran has also endorsed the use of hearing aids, which were acquired through a private provider. 

After reviewing the entire claims file, the Board finds that the Veteran's left ear hearing loss has not been compensably disabling for any period on appeal.  The Board finds that left ear hearing loss has been productive of average pure tone air conduction threshold at 1,000, 2,000, 3,000, and 4,000 Hertz of no worse than 46 decibels, and speech recognition ability of 94 percent.  This level of hearing loss indicates a noncompensable evaluation is warranted.

On VA examination in August 2007, the examiner indicated that hearing loss testing results were not reported because the examiner found the Veteran's responses to testing reflected hearing loss levels which were "considered non organic," with responses being "variable and inconsistent" with speech recognition scores.  The examiner stated that testing was attempted a second time, but without improved results.

In February 2008 the Veteran underwent audiological evaluation at a private facility.  Pure tone thresholds, in decibels, were as follows:


HERTZ

500
1000
2000
3000
4000
6000
LEFT
10
20
25
30
30
45

Puretone threshold average for the 1000 to 4000 hertz range was 26.25.  Speech discrimination testing was recorded as being 96 percent accurate in the left ear.  The methodology of such testing is not recorded, and VA regulations require that for rating purposes speech testing must use Maryland CNC testing.  38 C.F.R. § 4.85.  Accordingly, the results of the foregoing speech testing are not considered for rating purposes in this case.

On VA examination in April 2012, audiological evaluation revealed pure tone thresholds, in decibels, were as follows:


HERTZ

500
1000
2000
3000
4000
6000
8000
LEFT
15
25
40
60
60
55
50

Puretone threshold average from 1000 to 4000 hertz was 46 hertz and speech audiometry using the Maryland CNC word list was 94 percent in the left ear.  The examiner indicated that the pure tone test results were valid, and that the results showed sensorineural hearing loss of the left ear.  During the examination, the Veteran stated that hearing had become worse since the prior VA examination and denied any medical history, family history or ototoxic drug history of hearing loss.

Based on the foregoing evidence the Board finds that, for the entire appeal period, Veteran's service-connected bilateral hearing loss has not been compensably disabling under DC 6100.  Applying 38 C.F.R. § 4.85, the Veteran's 94 percent speech discrimination and the higher puretone threshold average of 46 hertz when compared to Table VI shows that Roman numeral I is assigned.  As previously stated, because only one ear is being rated, for the purposes of applying Table VII the Veteran's non-service-connected ear will be assigned Roman numeral I.  38 C.F.R. §4.85(f).  Turning now to Table VII, where Roman numeral I in the vertical column intersects with Roman numberal I in the horizontal row, Table VII reveals that a rating of zero percent rating is warranted.

The Board has considered whether the Veteran's hearing loss represents an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86, but finds that it does not.  Specifically the Veteran's puretone thresholds in the left ear are greater than 55 in only two of the four specified frequencies, see 38 C.F.R. § 4.86(a), and the puretone threshold is not 70 or more decibels at 2000 hertz, see 38 C.F.R. § 4.86(b).  Furthermore, as the evidence shows the Veteran does not have deafness, special monthly compensation under 38 C.F.R. § 4.85(g) is not for consideration.

Based on the foregoing, the Board concludes that the Veteran's left ear hearing loss has been zero percent disabling throughout the entire rating period on appeal.  As the preponderance of the evidence is against the claim, there is no doubt to be resolved.   38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

Extraschedular Consideration

The Board has also considered whether a referral for extraschedular rating is warranted.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Initially, 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; therefore, the assigned schedular evaluation is adequate, and no referral is required.  See VAOPGCPREC 6-96; see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (a threshold finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate is required for extraschedular consideration referral). 

A VA audiological examination report must fully describe the functional effects caused by a hearing disability in addition to dictating objective test results.  Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  In this regard, the April 2012 VA examination report specifically addressed the functional effects caused by the Veteran's left ear hearing loss disability, noting general complaints such as buzzing and ringing in the ears (part of the separate service-connected disability of tinnitus), and a general decline in the ability to hear.

The schedular criteria are adequate to rate the Veteran's left ear hearing loss disability.  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.  The Veteran's concern diminished auditory acuity; diminished auditory acuity and speech recognition testing are the foundation of the schedular criteria.  Moreover, the testing is to be performed without the use of hearing aids.  See 38 C.F.R. § 4.85(a).  The scores represent a rating made on the worst possible objective measure of performance.  In other words, the Veteran does not have any symptoms from the service-connected hearing loss disability that are unusual or are different from those contemplated by the schedular rating criteria.

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.  The regulatory history of 38 C.F.R. §§ 4.85 and 4.86 includes revisions, 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 is a disability picture that is considered in the current schedular rating criteria is contemplated in the regulations and schedular rating criteria.

For these reasons, the Board finds that the schedular rating criteria in this case is adequate to rate the Veteran's left ear hearing loss, and the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1).  In the absence of exceptional factors associated with the left ear hearing loss, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met.  See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). 

Finally, as discussed above, the April 2012 VA examination assessed that the Veteran's hearing loss had no occupational effect.  Consequently, the matter of entitlement to a total disability rating based on individual unemployability is not raised by the Veteran or the evidence of record.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).


ORDER

A higher (compensable) disability rating for left ear hearing loss is denied.


____________________________________________
J. PARKER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs