Citation Nr: 1332049 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 09-50 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 10 percent for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his son ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from December 1942 to October 1945. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans' Law Judge (VLJ) during a May 2012 hearing. A transcript of that hearing is of record. In May 2012, September 2012, and April 2013, the Board remanded the matter for additional evidentiary development. The Veteran submitted additional evidence with a waiver of RO review in April 2013. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT On VA audiometric examination in February 2013, the right ear had an average decibel loss of 105 plus with speech recognition that could not be determined (Level XI). The left ear had an average decibel loss of 53.75 with a speech recognition score of 84 percent (Level II). These findings are consistent with other VA examinations conducted during the appeal period. CONCLUSION OF LAW The criteria for an evaluation higher than 10 percent disabling for bilateral hearing loss disability have not been met. 38 U.S.C.A. § 1155 (West 2002 and Supp. 2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issue decided herein. There is no issue as to providing an appropriate application or the completeness of the application. By correspondence dated in January 2009 and May 2009, VA advised the Veteran of the information and evidence needed to substantiate a claim. The letters provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The Veteran was also provided information regarding the assignment of disability ratings and effective dates. The appeal was most recently readjudicated in the August 2013 Supplemental Statement of the Case. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records and VA examinations. Virtual VA records have also been reviewed. No additional pertinent records are shown to be available, and the appellant does not argue otherwise. Moreover, during the May 2012 Board hearing, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claim. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. No further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A (a) (2); 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merit of the claims. ANALYSIS Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected bilateral hearing loss disability has been rated by the RO under the provisions of Diagnostic Code 6100. 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 (1992). The severity of a hearing loss disability is determined by applying the criteria set forth at 38 C.F.R. § 4.85. Under these criteria, evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average pure tone hearing threshold level, as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 Hertz, or cycles per second, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85(a), (d). Table VI, "Numeric Designation of Hearing Impairment Based on Pure tone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the pure tone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone threshold average intersect. 38 C.F.R. § 4.85(b). Table VII, "Percentage Evaluations for Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing, while the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e). In addition, 38 C.F.R. § 4.86 applies to exceptional patterns of hearing impairment. Under its provisions, when the pure tone 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. Each ear will be evaluated separately. When the 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 numeral. 38 C.F.R. § 4.86. The issue on appeal is entitlement to a rating in excess of 10 percent for bilateral hearing loss. The February 2009 audiological evaluation revealed an average right ear pure tone decibel loss of 105 plus with speech recognition that could not be determined. This corresponds to a numeric designation of Level XI hearing in the right ear. 38 C.F.R. § 4.87, Table VI. The Veteran had a left ear average pure tone decibel loss of 48.75 with speech recognition of 96 percent. These findings are consistent with Level I hearing in the left ear. These combined numeric designations result in a rating of no higher than 10 percent under Diagnostic Code 6100. 38 C.F.R. § 4.85, Table VII. The Board observes that the pure tone thresholds during this examination reflect exceptional hearing impairment as defined by regulation in the right ear only, as pure tone thresholds at each of the four specified frequencies was 55 decibels or more. Application of the reported findings, however, to Table VIa results in no worse than Level XI hearing in the right ear, with the left ear (which does not fall under the pattern for exceptional hearing impairment), continuing to be Level I hearing. The April 2012 private audiological evaluation revealed an average right ear pure tone decibel loss of 105 plus. This corresponds to a numeric designation of Level XI hearing in the right ear. 38 C.F.R. § 4.87, Table VI. The Veteran had a left ear average pure tone decibel loss of 68.75 with speech recognition of 72 percent. These findings are consistent with Level VI hearing in the left ear. These combined numeric designations would result in a rating of 50 percent under Diagnostic Code 6100. 38 C.F.R. § 4.85, Table VII. The June 2012 audiological evaluation revealed an average right ear pure tone decibel loss of 103.75 plus with speech recognition of 0 percent. This corresponds to a numeric designation of Level XI hearing in the right ear. 38 C.F.R. § 4.87, Table VI. The Veteran had a left ear average pure tone decibel loss of 55 with speech recognition of 88 percent. These findings are consistent with Level II hearing in the left ear. These combined numeric designations result in a rating of no higher than 10 percent under Diagnostic Code 6100. 38 C.F.R. § 4.85, Table VII. The Board observes that the pure tone thresholds during this examination reflect exceptional hearing impairment as defined by regulation in the right ear only, as pure tone thresholds at each of the four specified frequencies was 55 decibels or more. Application of the reported findings, however, to Table VIa results in no worse than Level XI hearing in the right ear, with the left ear (which does not fall under the pattern for exceptional hearing impairment), continuing to be Level II hearing. The February 2013 audiological evaluation revealed an average right ear pure tone decibel loss of 105 plus with speech recognition that could not be determined. This corresponds to a numeric designation of Level XI hearing in the right ear. 38 C.F.R. § 4.87, Table VI. The Veteran had a left ear average pure tone decibel loss of 53.75 with speech recognition of 84 percent. These findings are consistent with Level II hearing in the left ear. These combined numeric designations result in a rating of no higher than 10 percent under Diagnostic Code 6100. 38 C.F.R. § 4.85, Table VII. As shown above, the VA audiometric examinations support a 10 percent rating for the Veteran's bilateral hearing loss disability and no more. The Board is mindful of the April 2012 private examination which showed more severe audiological findings for the left ear. It is noted, however, that the private examiner did not use the Maryland CNC in its speech discrimination testing as specified in 38 C.F.R. § 4.85(a). The results also do not appear to be an accurate depiction of the appellant's bilateral hearing disability and are wildly inconsistent with the other examinations of record. In this regard, the VA examination prior to April 2012 showed the combined numeric designations warranted a 10 percent rating. The appellant was reexamined in June 2012 and February 2013 and his combined numeric designation resulted in again a rating of 10 percent disabling. The VA examinations conducted in February 2009, June 2012 and February 2013 are consistent with each other. In July 2013, the VA examiner could not offer an opinion without resorting to speculation as to why the April 2012 private examination results were more severe than the VA examinations. She expressed, however, that the VA examination test results of June 2012 and February 2013 were consistent with each other and other tests completed prior to April 2012. The Veteran's reliability she stated on all VA tests were good. Based on the above, the Board finds that the April 2012 examination has no probative value as the examination results are an aberration, unreliable and inconsistent with the appellant's overall disability picture and are not in compliance with 38 C.F.R. § 4.85. Based on the evidence as a whole, the 10 percent rating accurately reflects the appellant's bilateral hearing loss disability. More specifically, there was not a material change in disability and, therefore, a staged rating is not warranted based upon an aberration. The Board notes that the Veteran's assertions that his hearing has deteriorated are credible. In determining the actual degree of disability, however, the examination findings are more probative of the degree of impairment. Moreover, as noted above, the Court has noted that the assignment of disability ratings for hearing impairment is derived at by a mechanical application of the numeric designations assigned after audiometric evaluations are rendered. Lendenmann, supra. In this case, the numeric designations produce no more than a 10 percent disability evaluation. 38 C.F.R. Part 4 Diagnostic Code 6100. An evaluation higher than 10 percent disabling for bilateral hearing loss disability must be denied. Although the Veteran asserts that his hearing loss is worse than evaluated, the medical evidence prepared by a skilled neutral professional is more probative. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. 38 U.S.C.A. § 5107(b) ; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). The Board has considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). There are no exceptional or unusual factors with regard to the Veteran's disability. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology, and the diagnostic code provide for consideration of greater disability and symptoms than currently shown by the evidence. Thus, the symptoms associated with the service-connected bilateral hearing loss disability are contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. In reaching this decision, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b). ORDER A rating higher than 10 percent disabling for bilateral hearing loss disability is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs