Citation Nr: 1333270 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 09-30 424 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a compensable rating for service-connected bilateral high frequency hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Boyd, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1989 to September 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In March 2011, the Veteran testified before the undersigned Veterans Law Judge during a hearing at the RO. A transcript of the proceeding has been associated with the claims file. The Veteran's claim was remanded in September 2011 for a new VA examination in order to assess the severity and manifestations of the Veteran's hearing loss. The Board finds that the remand directives have been completed and, therefore, a new remand is not required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). The Board notes the letter dated August 1, 2013 from the Veteran's Representative requesting a remand on account of evidence of an "addendum examination" conducted on December 22, 2011 that he could not locate in the record. The Board finds that this "addendum" was actually an opinion and was considered by the RO in the January 2012 Supplemental Statement of the Case. In addition, it appears in the claims file that is before the Board for consideration on appeal. Thus, the Board concludes that the remand directives were complied with and there is no prejudice to the Veteran in reaching the merits of his appeal at this time. In addition to a paper claims file, there is a Virtual VA electronic file. The Board has reviewed both files prior to reaching this decision. FINDING OF FACT At its most severe, service-connected bilateral hearing loss is manifested by Level II hearing acuity in the right ear and Level I hearing acuity in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for service-connected bilateral high frequency hearing loss have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA requires that VA inform a claimant about the information and evidence not of record that is necessary to substantiate the claims, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23353 -23356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. VCAA notice must be provided before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claims for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with a VCAA notification letter in January 2009, prior to the unfavorable AOJ rating decision issued in February 2009. The Board observes that the pre-adjudicatory VCAA notice advised the Veteran that he must show that his service-connected disability had increased in severity, of how VA would assist the Veteran in developing his claim, and his and VA's obligations in providing such evidence for consideration. This letter also informed him of the evidence necessary to substantiate disability ratings and effective dates. Thus, the Board concludes that the Veteran was provided with all necessary VCAA notice prior to adjudication of the claim. VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim and providing him with adequate audiological examinations. The Veteran's service treatment records, VA treatment records, and reports from the January 2009 fee-based audiological examination and the October 2011 VA audiological examination, including a December 2011 addendum, were associated with the claims file. The Veteran has not identified any additional records that VA needs to obtain for an equitable disposition of the claim. With regard to the VA examinations, the Board observes that once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, each examiner reviewed the claims file, documented the Veteran's subjective complaints and relevant medical history, and examined the Veteran, to include administering the necessary audiological testing. Thereafter, in the reports, they provided the information required to determine the appropriate disability rating under the schedular criteria. In addition to dictating objective test results on a VA audiological examination report, the audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447 (2007). In the present case, the January 2009 examiner noted that the Veteran reported repeating himself often as well as difficulty hearing when his back is turned to a person, when he is on his cell phone or in a busy environment (like a mall or social gathering). The October 2011 VA audiologist reported that the Veteran's hearing loss impacts the ordinary conditions of daily life, including his ability to work. However, the VA examiner did not review the claims file at that time. Thereafter, in December 2011, upon review of the claims file and an interview with the Veteran, the examiner submitted an addendum opinion reporting in more detail the effect of hearing loss on occupational ability and daily function. The Board has the entire record for review and finds that the requirement that the functional effects of the hearing disability be described has been effectively met. In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claim without further development and additional efforts to assist or notify the Veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claim. II. Entitlement to a Compensable Rating The Veteran's service-connected bilateral hearing loss is currently assigned a noncompensable rating evaluation pursuant to 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2013). The Veteran contends that the severity of his hearing loss warrants a higher rating than that assigned. His primary complaint is that, although the hearing test results are "justified and conducted under correct guidelines" they do not "accurately assess the personal impact" of hearing loss on his life. See August 2009 Form 9. 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 (Maryland CNC) combined with the average hearing threshold levels as measured by pure tone audiometric 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), Tables VI, VIA (2013). In order to establish entitlement to a compensable rating for hearing loss, certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss must be met. The results of the pure tone audiometric test and speech discrimination test are 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. Table VIA will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when an exceptional pattern of hearing loss is shown, specifically 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. When the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more in a particular ear, determination of the level of hearing acuity in that ear will be made using either Table VI or Table VIA, whichever results in the higher numeral. Id. As an initial matter, the relevant time period for evidence that must be addressed in the adjudication of this increased rating claim begins December 4, 2007, one year prior to the date of receipt of the increased rating claim. See 38 C.F.R. §3.400(o)(2) (2012). The primary concern in a claim for an increased evaluation for a service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Two audiograms were performed during the appeal period. A January 2009 audiogram yielded the following results with pure tone thresholds, measured in decibels: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 10 5 20 70 60 Left Ear 5 5 40 80 75 The average decibel loss was 39 decibels in the right ear and 50 decibels in the left ear. Speech discrimination scores were 88 percent in the right ear and 92 percent in the left ear. An October 2011 audiogram revealed the following pure tone thresholds: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 5 5 15 65 55 Left Ear 5 5 50 75 70 The average decibel loss was 35 decibels in the right ear and 50 decibels in the left ear. Speech discrimination scores were 100 percent in the right ear and 92 percent in the left ear. Using Table VI, these audiometric test results show the Veteran had Level II hearing loss in his right ear and Level I hearing loss in his left ear in January 2009. In October 2011, the Veteran had Level I hearing loss bilaterally. Applying Table VII to these results, the Veteran's hearing loss does not meet the criteria for a compensable rating at any time during the appeal period. Higher evaluations are assigned for more severe hearing impairment when reflected as such by objective audiological testing. The Board has reviewed the 2009 and 2011 examiners statements regarding the effect of hearing loss on the Veteran's usual occupation and daily activities. In 2009, the examiner concluded: "The claimant may have difficulty understanding speech of women and children due to the high frequency nature of his hearing loss. This difficulty will increase as background noise increases. It may also be more difficult to understand speech if he cannot see the other person who is speaking, as visual cues will help his understanding." See January 2009 Examination Report. The VA audiologist who re-examined the Veteran's claims file following the October 2011 VA examination related that in the interview of the Veteran he told her he had to repeat himself to others due to his hearing loss. She concluded: "This degree of hearing loss would have minimal impact [on] the Veteran's occupational ability or daily function." See December 2011 Addendum Opinion. The audiologist noted that the Veteran has VA issued hearing aids and opined that "use of these hearing aids should resolve his complaint of asking others to repeat themselves in most cases." Id. The Board is aware of the Veteran's complaints regarding the severity of his bilateral hearing loss. In addition, the Board is mindful of the Veteran's wife's contentions that he has problems hearing in large groups, speaks louder than normal and turns the TV and radio to higher volumes. See April 2009 Statement from Veteran's Wife. The Board finds this evidence credible. As a general matter, lay statements are considered to be competent evidence when describing what is observed or experienced concerning an injury or illness. See Layno v. Brown, 6 Vet. App. 465 (1994). However, the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometric results are obtained. Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. Lendenmann v. Principi, 3 Vet. App. 345 (1992). In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometric results. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The Board has considered the provisions of 38 C.F.R. § 3.321(b)(1) and whether the record shows that the Veteran's bilateral hearing loss is so exceptional or unusual as to warrant the assignment of a higher rating on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1) (2012). 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. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, 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. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms"(which include marked interference with employment and frequent periods of hospitalization). The Board recognizes that specific complaints of how hearing loss affects daily activities are not addressed in the rating schedule. However, the Board finds that the Veteran's complaints, as summarized above, are not particularly unusual with hearing disabilities. In regard to the effect his hearing loss has on his employment, the Veteran's employer submitted a statement in April 2009. The employer related that, as a mortgage consultant, the Veteran struggled to communicate with potential clients on the phone. See April 2009 Unity Lending Group Statement. The employer claimed that the company had lost clients as a result of the Veteran's hearing loss. The employer stated that the company was "trying to make strides to have him better adapted to his job" and they addressed the hearing issue by providing the Veteran with "special head phones that will allow the volume to be higher than normal." Id. The employer also noted that the Veteran's loss of hearing "hindered him with regards [to] communicating openly with internal peers on the job." Id. He concluded that the Veteran "is a good employee but the hearing loss is evident and something that we continue to address." Id. The Board finds no evidence that the Veteran is unable to work or has had to miss work because of his service-connected disability. Notably, the Veteran's employer is attempting to accommodate him and, as the VA audiologist opined in December 2011, hearing aids should help the Veteran with interpersonal relationships. The Board concludes that absent evidence of marked interference with employment, referral for an extraschedular rating is not warranted. Finally, while the appeal was pending, 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 and parcel of an increased-rating claim when raised by the record. The Board has jurisdiction to consider the Veteran's possible entitlement to a TDIU rating in this circumstance when the TDIU issue is reasonably indicated by the evidence and is predicated at least in part on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue. See VAOPGCPREC 6-96 (Aug. 16, 1996). See also Caffrey v. Brown, 6 Vet. App. 377 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993); EF v. Derwinski, 1 Vet. App. 324 (1991). Despite the Veteran's difficulty as a mortgage consultant, there is no evidence in the record that the Veteran is unemployable or unable to retain or follow substantially gainful employment due to his hearing loss. Therefore, further contemplation of a TDIU rating in this case is not warranted. The Board does not question the Veteran's sincere belief that the severity of his hearing loss warrants a higher rating. Consideration has been given to the applicability of the benefit of the doubt doctrine. However, as reflected by the above discussion, the preponderance of the evidence is against the claim. Therefore, the benefit of the doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7. ORDER A compensable rating for service-connected bilateral hearing loss is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs