Citation Nr: 1333869	
Decision Date: 10/25/13    Archive Date: 11/06/13

DOCKET NO.  05-37 744	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1.  Entitlement to an earlier effective date than February 9, 2004 for service connection for bilateral sensorineural hearing loss.

2.  Entitlement to a compensable initial disability rating for bilateral sensorineural hearing loss, prior to February 25, 2008.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

D.S. Lee, Counsel



INTRODUCTION

The Veteran served on active duty from July 1967 through November 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which granted service connection for bilateral sensorineural hearing loss, effective February 9, 2004 with a noncompensable initial disability rating.  In a timely August 2004 Notice of Disagreement (NOD), the Veteran contested the assigned initial disability rating.  After a Statement of the Case (SOC) addressing that issue was provided in September 2005, the Veteran perfected his appeal as to that issue in October 2005, via VA Form 9 substantive appeal.

In the course of subsequent development, original jurisdiction over this matter was transferred to the RO in Los Angeles, California.  In a November 2008 rating decision, the Los Angeles RO granted a higher 20 percent disability rating for the staged period beginning from February 25, 2008.  In a December 2008 correspondence, the Veteran expressed satisfaction with the higher 20 percent disability rating; however, he expressed that he wished to pursue his appeal to the extent that he sought an earlier effective date for service connection for bilateral hearing loss. 

In June 2009, the Veteran was provided a new SOC which adjudicated the issue of whether the Veteran was entitled to an earlier effective date than February 25, 2008 for the higher 20 percent disability rating assigned for bilateral hearing loss.  Although the record does not indicate that the Veteran expressly sought appeal as to that issue, the Veteran did respond to this SOC by filing a VA Form 9 substantive appeal in June 2009.

In Rice v. Shinseki, the Court of Appeals for Veterans Claims (Court) held that a TDIU rating claim is part of an increased rating claim when such claim is raised by the record.  See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009).  In the present case, TDIU has been addressed and awarded.  In this regard, the Los Angeles RO issued a December 2009 rating decision which awarded a full 100 percent disability rating for bilateral sensorineural hearing loss, effective from October 12, 2009.  The same rating decision also granted a TDIU effective from February 25, 2008.  Inasmuch as the Veteran did not perfect an appeal of the effective date assigned for TDIU, the matter of entitlement to a TDIU is not before the Board. 

In July 2012, the Board determined that initial adjudicatory action was necessary for the issue of entitlement to an effective date earlier than February 9, 2004 for service connection for bilateral hearing loss.  Hence, that issue was referred to the RO for its initial consideration and decision.  The separate issue of entitlement to an effective date earlier than February 25, 2008 for the assignment of a 20 percent disability rating for bilateral hearing loss was determined by the Board as being inextricably intertwined; hence, that issue was also remanded to the RO for its consideration, pending the RO's determination as to the proper effective date for service connection for bilateral hearing loss.  After efforts were undertaken to comply with these instructions, the matter was returned to the Board.

In April 2013, the Board remanded this matter again for further development, to include:  efforts to obtain audiometric data from testing performed in May 2005; obtaining a VA audiologist's interpretation of audiometric testing data from January 2004 and July 2007; and readjudicating the issues on appeal. The Board is satisfied that these development actions have been performed, and is prepared to proceed with its de novo consideration of the issues on appeal.

The Board notes that the Veteran requested Board hearings on both his October
2005 and June 2009 substantive appeals.  In a September 2007 statement, the
Veteran's representative indicated that the Veteran wanted a videoconference
Hearing.  The Veteran was initially scheduled for a March 2011 videoconference hearing before a Member of the Board.  On the day of the scheduled hearing, the
Veteran's representative sent a letter requesting the hearing be rescheduled because
"of the lack of preparation on the part of his authorized representative to effectively argue the issues before the Board."  Thereafter, the Veteran was scheduled for a subsequent videoconference hearing scheduled for May 21, 2012.  However, the
Veteran cancelled this hearing and has not requested that a new hearing be scheduled.  Accordingly, his hearing request is deemed withdrawn.  See 38 CFR
§§ 20.702(e), 20.704(e) (2013).

The Board notes that this appeal also initially included the issues of entitlement to a disability rating in excess of 50 percent for PTSD; entitlement to a disability rating in excess of 10 percent for a neck disability; entitlement to a compensable disability rating for a service-connected bilateral foot disability; and whether new and material evidence was received to reopen a prior claim for service connection for pes planus.  These issues were withdrawn by the Veteran in a May 2012 correspondence.  Thus, these issues are no longer before the Board on appeal.

This appeal was processed using the Virtual VA paperless claims processing system.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.


FINDINGS OF FACT

1.  The Veteran did not express any intention of seeking service connection for bilateral hearing loss, either formally or informally, before February 9, 2004.

2.  The evidence shows that the Veteran was diagnosed with bilateral hearing loss during VA audiometric testing and treatment on January 20, 2004.

3.  Prior to February 25, 2008 the Veteran had, at worst, Level III hearing loss in his right ear and Level II hearing loss in his left ear.


CONCLUSIONS OF LAW

1.  The criteria for an effective date of January 20, 2004, and no earlier, for service connection for degenerative disc disease of the lumbar spine have been met.  38 U.S.C.A. §§ 5101, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.1, 3.114, 3.151, 3.155, 3.400, 3.816 (2013).

2.  The criteria for a compensable initial disability rating for bilateral sensorineural hearing loss, prior to February 25, 2008, have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.85, 4.86, Table VI, Table VIA, Table VII (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

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 evidence or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.

VA's notice 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 v. Nicholson, 19 Vet. App. 473 (2006).  In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned.  Id.  Such notice should be provided to a claimant before the initial unfavorable decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

Regarding the issue of the Veteran's entitlement to an earlier effective date for service connection for bilateral hearing loss, the Board has considered whether VA has fulfilled its notification and assistance requirements under 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 and 38 C.F.R. § 3.159.  Nevertheless, given the favorable action taken below as to that issue, no further notification or assistance in developing the facts pertinent to these limited matters is required at this time.  Indeed, any such action would result only in delay.

Regarding the issue of the Veteran's entitlement to a compensable initial disability rating for bilateral sensorineural hearing loss, prior to August 25, 2008, letters provided to the Veteran in March and April of 2004 purported to provide the Veteran with the notice described above.  However, the Board notes that neither letter provided the Veteran with any notice as to the assignment of effective dates and disability ratings, as both letters pre-dated the Court's decision in Dingess.  Notwithstanding this notice deficiency, as service connection for hearing loss was granted in the RO's initial June 2004 adjudication, the Veteran was clearly not prejudiced by the notice deficiency.  Moreover, the RO issued an October 2008 letter which, consistent with Dingess, provided the Veteran with notice of the process by which VA assigns disability ratings and effective dates.  Subsequently, the Veteran was provided opportunity to respond to the October 2008 letter and to participate meaningfully in the development of his claim before the issue of the Veteran's entitlement to a higher initial disability rating was readjudicated by the RO in a November 2008 Supplemental Statement of the Case and rating decision.  Hence, to the extent that the Veteran may have been prejudiced by the late timing of the March 2008 letter, the effects of such prejudice have been cured.  See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim is sufficient to cure a timing defect).

In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims.  His service treatment records, claims submissions, lay statements, and VA treatment records have been obtained and associated with the record.  Also, VA examinations of the Veteran's hearing were conducted in February 2004, February 2008, and June 2013.  These examinations, along with the other evidence of record, are fully adequate for the purposes of determining the extent of the Veteran's hearing loss disability in light of the applicable diagnostic criteria.  In evaluating the adequacy of these examination reports, the Board observes that in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court of Appeals for Veterans Claims (Court) noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities.  See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2013).  In the present case, the VA examiners included a discussion of the effects of the Veteran's hearing loss, and the record otherwise includes the Veteran's statements concerning its effects.  Thus, the Board concludes that these examination reports are adequate for purposes of rendering a decision in the instant appeal.  See 38 CF.R. § 4.2  (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312   (2007).

Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.

I.  Earlier Effective Date

As noted above, the Veteran asserts that he is entitled to an effective date earlier than February 9, 2004 for service connection for bilateral sensorineural hearing loss.  In claims submissions received in December 2008, the Veteran suggests that the proper effective date for service connection for that disability is August 25, 2003.  In support of this assertion, the Veteran's representative has argued in a September 2013 brief that the record shows that the Veteran did request a copy of a VA treatment record, prior to the currently recognized February 9, 2004 claim, for the purpose of filing a claim for service connection for hearing loss.

The general rule regarding the assignment of effective date for an award based on an original claim for VA benefits is that the effective date "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor."  38 U.S.C.A. § 5110(a) (West 2002).  See 38 C.F.R. § 3.400 (2012) (to the same effect).  In the limited situation in which the application for benefits is received within one year from the veteran's date of discharge from active duty service, the effective date of the award is made retroactive to the day following the date of discharge from service.  38 U.S.C.A. § 5110(b)(1) (West 2002); 38 C.F.R. § 3.400(b)(2).  Otherwise, the effective date will be the later of the date of receipt of claim or the date entitlement arose.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2).

A "claim" or "application" is defined by VA regulation as "a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit."  38 C.F.R. § 3.1(p).  An informal claim is "[a]ny communication or action, indicating intent to apply for one or more benefits . . . ." 38 C.F.R. § 3.155(a).  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  Id.  When a claim has been received which meets the requirements of 38 C.F.R. § 3.151 or 3.152, an informal request for increase or reopening will be accepted as a claim.  38 C.F.R. § 3.155.

Under the provisions of 38 C.F.R. § 3.157(b)(1), the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of the claim.  For all other reports, including reports from private physicians, layman and State and other institutions, the date of receipt of the reports is accepted as the date of receipt of an info al claim 38 C.F.R.
§ 3.157(b).  The provisions of this regulation apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment, or hospital admission.  38 C.F.R. § 3.157(b).

The Board does not see the basis for the argument raised by the Veteran's representative in the September 2013 brief.  In that regard, there is simply no evidence in the record indicating that the Veteran ever expressed any intention of pursuing a claim for service connection for hearing loss before the currently recognized February 9, 2004 claim was received.  While the Veteran has asserted that service connection should be effected from August 25, 2003, the Board observes that his submission on that date does not suggest an intent to pursue a claim for service connection for a hearing loss disability.  Rather the Veteran wrote that he was requesting service connection for PTSD.  In so doing, he attached medical evidence in support of his claim and discussed his psychiatric symptoms of flashbacks, nightmares, anger, isolation, emotional numbness, anxiety and sleeping disorder.  There is no mention of any difficulty hearing. 

The first evidence of record showing an intent to apply for service connection for a hearing loss disability is a February 9, 2004 statement from the Veteran.  This submission was apparently accompanied by a January 20, 2004 VA treatment record pertaining to treatment received by the Veteran for reported hearing problems and tinnitus that had been presence since 1968.  Thus, to the extent that the evaluation and treatment on January 20, 2004 revealed a hearing loss disability, the effective date for service connection for bilateral hearing loss may be fixed to the date of that treatment.  There is no earlier claim, either formal or informal, for service connection for a hearing loss disability.  

For the purposes of applying the laws administered by VA, impaired hearing is a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  See 38 C.F.R. § 3.385.

Pursuant to the Board's more recent April 2013 remand, VA has obtained an interpretation of audiometric data performed during the January 20, 2004 VA evaluation and treatment.  According to the interpreting VA audiologist, audiometric testing performed at that time revealed the following pure tones:


HERTZ

500
1000
2000
3000
4000
RIGHT
15
10
25
55
80
LEFT
25
20
20
25
50

Based upon the foregoing data, the treating VA audiologist at the January 20, 2004 VA treatment diagnosed moderate to severe sensorineural hearing loss in the right ear from 3000 Hertz and moderate sensorineural hearing loss in the left ear from 4000 Hertz.  Indeed, the foregoing audiometric scores do indicate the presence of disabling hearing loss, as defined under 38 C.F.R. § 3.385.

Under the circumstances, the Veteran is entitled to an earlier effective date of January 20, 2004, but no earlier, for service connection for bilateral sensorineural hearing loss.  To that extent, this appeal is granted.

II.  Initial Disability Rating

As noted above, the Veteran's service-connected bilateral hearing loss disability has been rated as being noncompensable prior to February 25, 2008.  As also discussed above, the facts and evidence in this case do not permit the effective date for service connection of the Veteran's bilateral sensorineural hearing loss to be fixed any earlier than January 20, 2004.  Hence, the Board must endeavour to consider whether a compensable disability rating is warranted for the Veteran's bilateral hearing loss for the period from January 20, 2004 through February 25, 2008.

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 

Where there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the veteran's disability.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Moreover, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified.  In instances where the rating being appealed is the initial rating assigned with a grant of service connection, separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings."  See Fenderson v. West, 12 Vet. App. 119 (1999).

When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in the veteran's favor.  38 C.F.R. §§ 3.102, 4.3.  Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim.  If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed.  38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 55.

In cases where the disability rating for hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test.  Examinations will be conducted without the use of hearing aids.  38 C.F.R. § 4.85(a). 

In rating disabilities due to hearing impairment, VA must first determine the Roman numerical designation for hearing impairment in each ear based upon a combination of the percent of speech discrimination and the pure tone threshold average.  38 C.F.R. § 4.85.  In general, the Roman numerical designation is determined through application of 38 C.F.R. § 4.85(h), Table VI. 

Under Table VI, the horizontal rows represent eight separate ranges of pure tone threshold averages, as demonstrated through audiometric testing for the frequencies at 1000, 2000, 3000, and 4000 Hertz.  The average pure tone threshold is calculated by determining the sum of the pure tone thresholds demonstrated at the four aforementioned frequencies and dividing that sum by four.  The vertical columns under Table VI represent nine separate ranges of speech discrimination percentage, as determined through Maryland CNC testing.  Next, the Roman numerical designation of impaired efficiency is determined for each ear by intersecting the horizontal row appropriate for the calculated pure tone threshold average and the vertical column appropriate for the demonstrated percentage of speech discrimination.  For example, if audiometric testing shows an average pure tone threshold of 60 in the right ear and Maryland CNC testing shows the percentage of discrimination of 70 in the right ear, the numeric designation level is "V" for one ear.  In the example, the same procedure would be followed for the left ear.  38 C.F.R. § 4.85(b). 

Alternatively, in instances where audiometric testing reveals an exceptional pattern of hearing impairment, Roman numerical designations may be determined under 38 C.F.R. § 4.85(h), Table VIA.  Pursuant to 38 C.F.R. § 4.86, an exceptional pattern of hearing impairment exists where audiometric testing reveals either: (1) pure tone thresholds of 55 decibels or more at each of the frequencies at 1000, 2000, 3000, and 4000 Hertz; or, (2) a pure tone threshold at 30 decibels or less at 1000 Hertz  and 70 decibels or greater at 2000 Hertz.  As shown in the discussion below, the Veteran does not demonstrate exceptional hearing loss at any time during the appeal period that is at issue here.  Accordingly, Table VIA is not applicable in this case in determining the Roman numerical designations for the Veteran's hearing loss. 

After the Roman numerical designation has been determined for each ear, VA then determines the appropriate disability rating through application of 38 C.F.R. § 4.85(h), Table VII.  Table VII is applied by intersecting the appropriate horizontal row (which represents the Roman numerical designation for the poorer ear) with the appropriate vertical column (which represents the Roman numerical designation for the better ear).  For example, if the poorer ear has a Roman numerical designation of "VII" while the better ear has a numeric designation level of "V," the assigned disability rating is 30 percent.  38 C.F.R. § 4.85(e).

The evidence relevant to the appeal period from January 20, 2004 through February 25, 2008 includes the aforementioned January 2004 VA audiometric testing.  For ease of reference, the Board once again notes here that audiometric testing performed during that examination revealed the following pure tone thresholds at the frequencies of 1000, 2000, 3000, and 4000 Hertz:



HERTZ



1000
2000
3000
4000
RIGHT
10
25
55
80
LEFT
20
20
25
50

Based upon the foregoing audiometric results, the pure tone threshold average was 43 decibels in the right ear and 29 decibels in the left ear.  Speech audiometry testing was performed, however, was performed via NU-6 testing and not Maryland CNC testing as mandated under the regulations.  Accordingly, although the data from the January 2004 VA treatment is sufficient to allow the Board to determine whether a hearing loss disability under 38 C.F.R. § 3.385 existed at that time, it is insufficient to allow the Board to determine the extent of the Veteran's hearing loss via the mechanical process described above.

During a February 2004 VA examination, the Veteran reported difficulty hearing and this problem became more severe amidst background noise.  Audiometry and speech discrimination tests performed via Maryland CNC testing were performed during the examination.  The examiner opined that reliability and validity of these tests were good.  The audiometric tests revealed the following pure tone thresholds:



HERTZ



1000
2000
3000
4000
RIGHT
25
20
25
45
LEFT
25
20
35
55

Based upon these audiometric results, the pure tone threshold average was 29 decibels in the right ear and 34 decibels in the left ear.  Speech audiometry testing revealed speech recognition scores of 96 percent in the right ear and 84 percent in the left ear.  Under Table VI, the hearing loss demonstrated by the Veteran at the VA examination equates to Level I hearing loss in the right ear and Level II hearing loss in the left ear.  Application of these numerical designations to Table VII once again equates to assignment of a noncompensable disability rating.

Audiometric testing performed during VA treatment in May 2005 revealed the following pure tone thresholds:



HERTZ



1000
2000
3000
4000
RIGHT
20
30
65
80
LEFT
25
25
30
50

Based upon the foregoing audiometric data, the pure tone threshold average was 49 decibels in the right ear and 33 decibels in the left ear.  Speech audiometry testing, which was performed via the Maryland CNC test, revealed speech recognition scores of 80 percent in the right ear and 84 percent in the left ear.  Under Table VI, the hearing loss demonstrated by the Veteran at the VA examination equates to Level III hearing loss in the right ear and Level II hearing loss in the left ear.  This level of hearing loss again equates to a noncompensable disability rating under Table VII.

During follow-up VA treatment in August 2005, the Veteran was issued hearing aids.  Audiometric or speech discrimination testing was not performed at that time.

During VA treatment in July 2007, the Veteran continued to complain of decreased bilateral hearing that was accompanied at that time by occasional right ear pain.  Audiometric testing performed at that time revealed the following pure tone thresholds:



HERTZ



1000
2000
3000
4000
RIGHT
40
50
65
85
LEFT
50
50
55
65

Based upon the foregoing audiometric scores, the demonstrated pure tone threshold average was 60 decibels in the right ear and 55 decibels in the left ear.  As noted in the June 2013 opinion prepared by a VA audiologist pursuant to the Board's April 2013 remand, speech discrimination testing was not performed via the Maryland CNC word list test.  For this reason, the Board notes that the data expressed in the July 2007 VA treatment record are also not useful in allowing the Board to determine the severity of the Veteran's hearing loss.

The Board acknowledges that the Veteran has consistently reported difficulty hearing and that this problem worsened amidst background noise.  In his October 2005 substantive appeal, he reported further that he was unable to hear people in conversation and that he frequently asked people to repeat themselves.  To the extent that the Veteran's reported functional impairment may be construed as asserting a severity of hearing loss that is beyond the schedular disability rating contemplated by this decision, such assertions, by themselves, are insufficient to establish entitlement to a higher schedular rating for bilateral hearing loss.  In this regard, the Board observes that "disability ratings for hearing impairment are 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, 349 (1992). 

In the present case, the "mechanical application" of the diagnostic criteria to the evidence at hand clearly establishes that, for all periods relevant to this appeal prior to February 25, 2008, the Veteran is not entitled to a compensable disability rating for bilateral hearing loss.

Extraschedular Consideration

Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance.  See also VAOPGCPREC 6-96.  However, the Board can address the matter of referral of a disability to appropriate VA officials for such consideration. 

Under the applicable criteria, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1); see also Fanning v. Brown, 4 et. App. 225, 229 (1993).

As noted previously, in Martinak v. Nicholson, 21 Vet. App. 447, 453-4 (2007), the Court held that a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report of the examination to facilitate determinations regarding extraschedular consideration.  The Court noted that, unlike the rating schedule for hearing loss disability, 38 C.F.R. § 3.321(b) does not rely exclusively on objective test results to determine whether an extraschedular rating is warranted.  See Martinak, 21 Vet. App. at 455. 

Notably, the February 2004 VA examiner noted that the Veteran reported that the effects of his hearing loss on his functioning and daily activities included increasing problems with background noise.  Similar reports were made during treatment in July 2007, during which time the Veteran complained of occasional right ear pain.  Based on these reported descriptions of the functional effects of the Veteran's hearing loss disability, the Board finds that the VA examination reports are in compliance with Martinak, and that the evidence of record is sufficient for the Board to consider whether referral for an extraschedular rating is warranted under 38 C.F.R. § 3.321(b)  .

Under Thun v. Peake, 22 Vet App 111 (2008), decided after the Court's decision in Martinak, there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto 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 the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected bilateral hearing loss disability is inadequate.  A comparison between the levels of severity and symptomatology of the Veteran's hearing loss with the established criteria found in the rating schedule for hearing loss shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology; as discussed above, the rating criteria considers puretone decibel hearing loss and speech discrimination hearing loss.

Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot. In any event, the Board observes that, even if the available schedular evaluation for the Veteran's hearing loss disability were inadequate [which it manifestly is not], the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms," nor does he so contend. 

The Board has been unable to identify an exceptional or unusual disability picture, and neither has the Veteran. As noted above, the Veteran has reported that he has trouble hearing and understanding others and requires help from hearing aids. The Board however finds that these functional effects caused by the Veteran's hearing disability, which undoubtedly exist, do not constitute any exceptional or unusual disability picture warranting consideration of an extraschedular rating.

In short, there is nothing in the record to indicate that the Veteran's service-connected hearing loss disability causes impairment with employment over and above that which is contemplated in the assigned schedular rating. The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.

In this case, the manifestations of the disability are contemplated by the schedular criteria governing hearing loss disability. Therefore, referral for extra-schedular consideration is not warranted.



ORDER

Entitlement to an earlier effective date than February 9, 2004 for service connection for bilateral sensorineural hearing loss is denied.

Entitlement to a compensable initial disability rating for bilateral sensorineural hearing loss, prior to February 25, 2008, is denied.



____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs