Citation Nr: 1333805 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 09-33 694 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUE Entitlement to an initial compensable evaluation for the service-connected bilateral hearing loss disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to July 1970. He served in the Republic of Vietnam from August 1968 to September 1969 and was awarded the Combat Action Ribbon. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a November 2006 rating decision of the RO, which in pertinent part, granted service connection for a bilateral hearing loss disability and assigned a noncompensable rating, effective on March 15, 2006. In January 2012, the Board remanded this matter for further development, and the matter returns to the Board for the purpose of appellate disposition. The Virtual VA paperless claims processing system contains duplicates or additional documents pertaining to this appeal, the most relevant to this issue being the October 2013 appellate brief. The Veterans Benefits Management System (VBMS) does not contain any documents pertinent to this matter. FINDINGS OF FACT 1. On VA audiological testing in September 2006, the Veteran's hearing acuity was level I in each ear. 2. On VA audiological testing in March 2012, the Veteran's hearing acuity was level I in his left ear and level II in his right ear. CONCLUSION OF LAW The criteria for the assignment of a compensable rating for the service-connected bilateral hearing loss disability have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.85, 4.86 including Diagnostic Code 6100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify In a claim for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication and post-adjudication VCAA notice by letters dated in May 2006 and January 2012 respectively. The May 2006 letter notified the Veteran of the evidence needed to substantiate the claim for service connection as well as what information and evidence must be submitted by the Veteran, what information and evidence would be obtained by VA, and the provisions for the effective date of the claim and for the degree of disability assignable. The requirement of VCAA notice does not apply for a claim on appeal for higher initial evaluations for a service-connected disability. Where a claim for service connection has been substantiated and an initial rating and effective date assigned, the filing of a notice of disagreement with the RO's decision as to the assigned disability rating does not trigger additional 38 U.S.C.A § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is no longer applicable in the claim for an initial compensable rating for bilateral hearing loss. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Duty to Assist VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Post-service treatment records and lay statements have been associated with the record. The Veteran was also afforded VA audiological examinations in September 2006 and in March 2012, in compliance with the Board's December 2012 remand instructions. The VA audiological examinations were adequate for rating purposes because they employed the Maryland CNC speech discrimination test and otherwise contained data allowing the Board to determine whether the Veteran's rating was appropriate pursuant to the applicable regulatory criteria. A review of the record indicates that the Board's remand directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). All relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. Thus, the Board finds that VA has obtained, or made reasonable efforts to obtain, all evidence that might be relevant to the issues on appeal, and that VA has satisfied the duty to assist. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103. The claim for an initial compensable evaluation for the service-connected bilateral hearing loss disability is thus ready to be considered on the merits. Rating Principles Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. When a claimant is awarded service connection and assigned an initial disability 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. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). 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, the evidence does not show significant changes in the disability during the period on appeal, and a uniform evaluation is warranted. Under the applicable criteria disability ratings are determined by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from 0 percent to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1000, 2000, 3000 and 4000 Hertz. The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a puretone audiometry test. The vertical lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. See 38 C.F.R. § 4.85. The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. The percentage evaluation is found from Table VII by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. For example, if the better ear has a numeric designation Level V and the poorer ear has a numeric designation Level VII, the percentage evaluation is 30 percent. See 38 C.F.R. § 4.85. Where there is an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86 the rating may be based solely on puretone threshold testing. An exceptional pattern of hearing impairment occurs when the puretone thresholds in each of the four frequencies: 1000, 2000, 3000, and 4000 Hertz are 55 decibels or greater or when the puretone threshold at 1000 Hertz is 30 decibels or less, and the threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86(a),(b). Analysis The Veteran contends that his service-connected bilateral hearing loss disability should be assigned a compensable evaluation. He reports having continued difficulty with his hearing in understanding speech that impacts his ability to hear conversations. The Board has considered the two VA audiograms (September 2006 and March 2012) reflecting the Veteran's hearing acuity during the period of the appeal. For the reasons set forth below, the Board finds that the record, to include these audiograms, does not provide findings that would warrant the Veteran a compensable evaluation under Diagnostic Code 6100. The September 2006 VA audiology examination shows relevant pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 50 50 50 50 50 LEFT 15 35 45 40 33.75 Speech audiometry (CNC) revealed speech recognition ability of 96 percent in the right ear and of 100 percent in the left ear. From Table VI/Table VIA of 38 C.F.R. § 4.85, Roman Numeral I is derived for the left ear and Roman Numeral I is derived for the right ear when intersecting the percent of speech discrimination row with the puretone threshold average column. The right ear is considered the poorer ear according to Table VII, 38 C.F.R. § 4.85. A no percent evaluation is derived from Table VII by intersecting row I, the better ear (left), with column I, the poorer ear (right). The March 2012 VA audiology examination shows relevant pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 50 55 50 50 51.25 LEFT 15 40 50 50 38.75 Speech audiometry (CNC) revealed speech recognition ability of 84 percent in the right ear and of 94 percent in the left ear. From Table VI/Table VIA of 38 C.F.R. § 4.85, Roman Numeral I is derived for the left ear and Roman Numeral II for the right ear when intersecting the percent of speech discrimination row with the puretone threshold average column. The right ear is considered the poorer ear according to Table VII, 38 C.F.R. § 4.85. A no percent evaluation is derived from Table VII by intersecting row II, the better ear (left), with column VIII, the poorer ear (right). After a careful review of the evidence of record, both subjective and objective, the Board finds that based on the reports during the period of the appeal, the Veteran's hearing tests do not support findings that would warrant more a compensable rating under Diagnostic Code 6100. The Veteran's subjective report of difficulty hearing under various circumstances aforementioned unfortunately cannot be the conclusive basis for a rating. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (finding that lay testimony is competent when it regards features or symptoms of injury or illness). The Board is bound to apply the VA rating schedule, under which the rating criteria are defined and limited by audiometric findings. This criteria measures hearing acuity directly in a controlled laboratory environment. In this regard, all of the aforementioned VA reports, particularly the most recent audiometric study completed in March 2012, showed no basis for any increase in disability evaluation. The above evidence reflects that application of the rating schedule to the numeric designations assigned based on the two VA audiological examination reports dated during the appeal period indicates that the appropriate rating for the bilateral hearing loss disability is a noncompensable one throughout the appeal period. See 38 C.F.R. § 3.85. The Veteran did not meet the criteria for a higher rating during any discrete period involved in this appeal. Furthermore, an exceptional pattern of hearing impairment is not shown under 38 C.F.R. § 4.86 because the puretone threshold at each of the four specified frequencies is not 55 decibels or more, and the puretone threshold is not 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. Additionally, there is no examiner certification that use of speech discrimination testing was not appropriate due to factors such as language difficulties, inconsistent scores, etc. As such, there is no basis to alternatively rate this claim under Table VIA. See 38 C.F.R. § 4.85(c). In Martinak v. Nicholson, 21 Vet. App. 447 (2007) the Court addressed a challenge to VA's audiological testing practices; specifically, whether VA's policy of conducting all audiometry testing of hearing-loss claimants in a sound-controlled room was valid. The Court also addressed the requirements for an adequate VA audiological examination report. The Court upheld VA's policy of conducting audiometry testing in a sound controlled room. The Court also 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. Subsequently, however, in Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1280 (Fed. Cir. 2009), the Federal Circuit indicated that, "while the effects of a disability on one's daily life are arguably relevant to a doctor conducting a medical examination, those effects are not relevant to a disability rating made by a ratings specialist," and "VA has never adopted an interpretation to the contrary." The VA examiner for March 2012 examination described the functional effects caused by the Veteran's hearing loss disability in the report. Given the Federal Circuit's statement in Vazquez-Flores above, the Board finds the description of functional effects in March 2012 examination report is not relevant to the actual rating of the service-connected bilateral hearing loss disability as the rating criteria is based on objective testing results. Extraschedular Consideration While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether the claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization so as to render the regular schedular standards impractical. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, inadequate and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria is found reasonable describe the disability level and symptomatology pertaining to the Veteran's service-connected bilateral hearing loss. As indicated, the Veteran reports the inability to understand people in conversations and the worsening of his hearing loss disability. The Board is of the opinion that the Rating Schedule measures and contemplates these aspects of the Veteran's hearing loss disability. As explained in the proposed rule for the current version of DC 6100, the criteria of DC 6100 were revised in 1987 with the goal of recognizing the impact of hearing loss in higher frequencies, and to provide a more accurate picture of true hearing impairment. See 52 Fed. Reg. 17607 (May 11, 1987). As a result, VA changed its testing methods and, in conjunction with the Department of Medicine and Surgery, developed amendments to 38 C.F.R. § 4.85, 4.86a, 4.87a and Tables VI and VII. In particular, puretone averaging was to be accomplished using tone bursts at 1000, 2000, 3000 and 4000 Hertz, and speech recognition was to be measured using the Maryland CNC word lists which contained words with sounds in the 3000 and 4000 Hertz range. Overall, the schedule was intended to evaluate hearing loss based on a combination of puretone averages and speech discrimination, which was thought to provide for a more accurate representation of actual hearing impairment by recognizing that individuals with slight to moderate decibel loss as determined by puretone averaging may have significant impairment of speech and vice versa. Additionally, the rating schedule was revised to accommodate language difficulties and other factors which produced inconsistent speech audiometry scores, and to recognize exceptional patterns of hearing impairment. Notably, VA determined that "Table VII was developed during months of consultations with our Department of Medicine and represents the best judgment of experts in this field." Based upon the stated factors and considerations undertaken by VA and medical experts in developing the current criteria of DC 6100, the Board finds that the schedular rating currently assigned reasonably describes the Veteran's disability level and symptomatology. The Veteran's description of an inability to hear and discriminate speech has been measured according to puretone averages and speech discrimination. As the preponderance of the evidence is against the claim for an initial compensable evaluation for the service-connected bilateral hearing loss disability, the benefit-of-the-doubt rule does not apply, and the Board must deny the claim. See U.S.C.A. §§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial compensable evaluation for the service-connected bilateral hearing loss disability is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs