Citation Nr: 1331823 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 10-17 941 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased rating for bilateral hearing loss, rated as noncompensable prior to September 22, 2011, and as 10 percent disabling thereafter. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1965 to August 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which established service connection for bilateral hearing loss and assigned a noncompensable rating, effective October 18, 2007. In November 2012, the RO granted an increased 10 percent rating for bilateral hearing loss effective September 22, 2011. As that award does not represent a total grant of the benefit sought, the claim for an increased rating for bilateral hearing loss remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993) As will be discussed further below, the issue of TDIU entitlement has been raised by the record during the pendency of the Veteran's appeal. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when such a claim is raised by a Veteran or otherwise reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that a Veteran is appealing the 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. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. Prior to September 22, 2011, the most probative evidence indicates the Veteran's hearing loss has been manifested by Level I hearing loss in the right ear and Level I hearing loss in the left ear, at worst. 2. Since September 22, 2011, the most probative evidence indicates the Veteran's hearing loss has been manifested by Level II hearing loss in the right ear and Level VII hearing loss in the left ear, at worst. CONCLUSIONS OF LAW 1. Prior to September 22, 2011, the criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2013). 2. Since September 22, 2011, the criteria for a rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in a December 2007 letter, the Veteran was provided notice regarding what information and evidence was needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. This appeal, however, arises from the initial award of service connection. In Dingess, the Court held that in cases in which 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. Dingess, 19 Vet. App. at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (section 5103(a) notice is no longer required after service-connection is awarded); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Thus, VA's duty to notify in this case has been satisfied. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, a private treatment record, VA treatment records, statements from the Veteran, and VA and contract (QTC) examination reports. Regarding the adequacy of the examinations for extraschedular evaluation, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the United States Court of Appeals for Veterans Claims (Court) noted that, unlike the rating schedule for hearing loss, the extraschedular provisions do not rely exclusively on objective test results to determine whether referral for an extraschedular rating is warranted. The Court 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. Id. Here, the January 2008 and May 2011 VA audiological examiners did not provide an adequate description of the functional effects of the Veteran's hearing loss. However, the Veteran described such functional effects in his December 2008 Notice of Disagreement and his April 2010 Substantive Appeal. Therefore, the Veteran is not prejudiced because the examiner did not discuss the functional effects caused by his hearing loss disability, since the record contains sufficient evidence to evaluate the Veteran's claim on an extraschedular basis. As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument and presenting for VA examinations. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2013); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2013); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2013); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2013). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Here, the RO has already granted staged ratings for the Veteran's hearing loss disability. The Board has reviewed all of the evidence in the Veteran's paper claims file and electronic VA record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Evaluations of bilateral defective hearing range from non-compensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from bilateral service-connected defective hearing, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, Tables VI and VII, Diagnostic Code 6100 (2013). 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). An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. In that situation, 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. 38 C.F.R. § 4.86(a) (2013). Further, when the average pure tone 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be considered separately. 38 C.F.R. § 4.86(b). The Veteran was afforded a VA audiological examination in January 2008 during which he reported gradual hearing difficulties over the past 15 years. He further reported a history of ear infections, occasional dizzy spells with associated lightheadness and nausea, and familial hearing loss. He indicated that he suffered from tinnitus that was severe and seriously affected his normal activities, especially communication and hearing. An audiogram showed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 15 15 50 55 33.75 LEFT 25 25 75 80 51.25 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 96 percent in the left ear. The examiner's impression was that the Veteran had mild bilateral sensorineural hearing loss. Parenthetically, the Board observes that the average pure tone threshold for the right ear noted on the January 2008 VA examination report is incorrect. The correct average is as noted above. Applying the results from the January 2008 VA examination to Table VII in 38 C.F.R. § 4.85 yields a finding of Level I hearing loss in the right ear and Level I hearing loss in the left ear. Where hearing loss is at Level I in one ear and Level I in the other, a 0 percent rating is assigned under Table VII. 38 C.F.R. § 4.85. In his December 2008 Notice of Disagreement, the Veteran reported that before he retired, he worked in a sales department and had extreme difficulty hearing and communicating with customers and that his inability to hear properly caused considerable embarrassment and conflict with co-workers as well as customers. In his April 2010 Substantive Appeal, the Veteran reported that he had extreme difficulty understanding telephonic and personal conversations with or without hearing aids. The Veteran was afforded a second VA audiological examination in May 2011. At that time, the Veteran reported that he wore hearing aids in both ears. However, there was no significant change since the January 2008 VA audiological examination. The Veteran reported dizziness but denied otalgia and other ear problems. An audiogram showed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 20 20 55 60 38.75 LEFT 25 25 80 85 53.75 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 92 percent in the left ear. The examiner's impression was that the Veteran had mild to moderate-severe high frequency hearing loss in the right ear and mild to severe high frequency hearing loss in the left ear. Applying the results from the May 2011 VA examination to Table VII in 38 C.F.R. § 4.85 yields a finding of Level I hearing loss in the right ear and Level I hearing loss in the left ear. Where hearing loss is at Level I in one ear and Level I in the other, a 0 percent rating is assigned under Table VII. 38 C.F.R. § 4.85. Most recently, the Veteran was afforded a VA QTC examination in May 2012. At that time, the Veteran reported that his hearing loss caused him to severely misunderstand telephonic conversations, family members, and friends. He further reported that even with binaural amplication, conversations are still difficult to understand. Audiometric testing at that time revealed the following pure tone thresholds, in decibels: HERTZ 1000 2000 3000 4000 Avg. RIGHT 50 65 75 85 68.75 LEFT 55 65 95 100 78.75 Speech audiometry using the Maryland CNC test revealed speech recognition ability of 96 percent in the right ear and 72 percent in the left ear. Applying the results from the May 2012 QTC examination to Table VII in 38 C.F.R. § 4.85 yields a finding of Level II hearing loss in the right ear. For the left ear, as the pure tone threshold was 55 decibels or more at each of the four specified frequencies, Table VIA is for application and more favorable to the Veteran, and yields a finding of Level VII. Where hearing loss is at Level VII in one ear and Level II in the other, a 10 percent rating is assigned under Table VII. 38 C.F.R. § 4.85. The foregoing VA examinations were conducted in accordance with 38 C.F.R. § 4.85(a) and are highly probative. By contrast, a private audiogram dated in November 2008 appears to have employed monitored live voice (MLV) in place of a controlled Maryland CNC test for speech audiometry testing, and is therefore not adequate for VA rating purposes. 38 C.F.R. § 4.85. Moreover, the May 2011 VA examiner noted that the findings documented on the November 2008 private evaluation were for purposes of a hearing aid fitting and reflected how much sound pressure the Veteran was getting from the hearing aid at a particular frequency; the examiner noted that it was not a measure used for evaluating hearing loss. Accordingly, the Board finds the November 2008 private audiological evaluation to be inadequate for VA rating purposes. Id. The Board has also considered whether referral for an extraschedular rating is appropriate. 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. Therefore, 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. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the rating 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. In the second step of the inquiry, however, 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 those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (2013). Related factors include "marked interference with employment" and "frequent periods of hospitalization." Id. When the rating schedule is inadequate to evaluate a claimant'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 Compensation Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render his schedular rating inadequate. The Veteran's bilateral hearing loss has been evaluated under the applicable diagnostic code that has specifically contemplated the level of occupational impairment caused by that disability. The Veteran provided statements in December 2008 and April 2010 that he has difficulty hearing people on the phone and that, before he retired, he had difficulty hearing and understanding customers and co-workers. Based on consideration of all of the relevant evidence of record, the Board finds that impairment caused by bilateral hearing loss is contemplated by the ratings assigned under Diagnostic Code 6100. In short, there is no indication in the record that the average industrial impairment from the Veteran's bilateral hearing loss would be in excess of that contemplated by the assigned rating; the Veteran's disability picture is not shown to be exceptional or unusual. Therefore, referral for assignment of an extraschedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). In summary, the most probative evidence of record fails to demonstrate that a compensable rating is warranted for the Veteran's service-connected bilateral hearing loss for the period prior to September 22, 2011, or that a rating in excess of 10 percent is warrant for the period since September 22, 2011. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER For the period prior to September 22, 2011, entitlement to a compensable rating for bilateral hearing loss is denied. For the period since September 22, 2011, entitlement to a rating in excess of 10 percent for bilateral hearing loss is denied. REMAND The Veteran asserted in a December 2008 written statement that he retired due, in part, to his hearing disability. Accordingly, entitlement to a TDIU has been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). It appears from recent correspondence in the Veteran's Virtual VA file that the RO has initiated development of the Veteran's implicit TDIU claim. However, it does not appear that the Veteran has been provided notice of the information or evidence needed to establish TDIU, nor has he been provided a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. As the issue of entitlement to TDIU is part and parcel of the increased rating claim for a hearing loss disability and further development must be accomplished on the TDIU claim, the issue is remanded for appropriate development. Accordingly, the case is REMANDED for the following action: 1. Issue a notice letter that complies with the requirements of 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2013) that includes an explanation as to the information or evidence needed to establish a claim for TDIU. 2. Send the Veteran a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, for him to complete. See M21-1MR, IV.ii.2.F.25.i. 3. Adjudicate the TDIU claim. If the benefits sought are not granted, the Veteran and his representative should be furnished a Statement of the Case (SOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs