Citation Nr: 1334007 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 08-37 848 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial compensable evaluation for bilateral hearing loss. REPRESENTATION The Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from June 1962 to June 1967. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In October 2009, the Veteran testified at a videoconference hearing before the undersigned; a transcript of the hearing is of record. In March 2010, the Board remanded the claim for additional development. The development has been completed and the case has been returned to the Board for appellate review. The Veteran's paper claims file and electronic folder in Virtual VA and the Veterans Benefits Management System (VBMS) have been reviewed in conjunction with the disposition of the issue remaining on appeal. FINDING OF FACT From September 26, 2007, audiometric testing revealed no greater than a level I hearing loss in each ear. CONCLUSION OF LAW From September 26, 2007, the criteria for an initial compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.385, 4.1, 4.2, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The requirements of 38 U.S.C.A. § 5103 and 5103A have been met. Because service connection, an initial rating, and an effective date have been assigned, the notice requirements of the Veterans Claims Assistance Act (VCAA), 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Consequently, discussion of VA's compliance with VCAA notice requirements as they relate to the increased rating claim would serve no useful purpose. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claim, and as warranted by law, affording VA examinations. VA examinations were conducted in November 2007, March 2009, and May 2010. The Veteran does not argue that these examinations were deficient in any manner. The examiners reviewed the Veteran's claims file, considered his contentions, conducted an appropriate audiological evaluation, and provided a complete rationale for all opinions expressed. The May 2010 examiner described functional effects related to the hearing loss disability, and, during the Board hearing and throughout the course of this appeal, the Veteran has described his hearing loss and its impact on social and occupational situations. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Therefore, the Board finds that the examination reports, along with his hearing testimony, are adequate, as together they address the Veteran's symptoms in relation to the rating criteria. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran also submitted private audiometric testing conducted in June 2008; however, it is unclear whether the speech recognition scores were obtained using the Maryland CNC test. In Savage v. Shinseki, 24 Vet. App. 259 (2011) the Court of Appeals for Veterans Claims (Court) held that the Board must either seek clarification of a private medical examination report or explain why such clarification is not needed if a private medical examination is unclear or insufficient. In this case, clarification is not needed because the Veteran was provided with two additional VA audiology examinations to assess the extent of his hearing impairment. As explained below, even assuming the June 2008 private audiologist used the Maryland CNC test, the results would be considered an anomaly and not probative in light of subsequent VA Maryland CNC testing in March 2009 and May 2010 that revealed markedly better speech recognition scores. In March 2010, the Board remanded the claim for additional development. In response to those remand directives, the Agency of Original Jurisdiction (AOJ) assisted the Veteran in obtaining previously identified private medical records and afforded him a VA examination in May 2010. As noted above, the Board finds the VA examination report, in conjunction with other evidence of record, adequate to make a determination on this claim. Therefore, the Board finds that the AOJ has substantially complied with the prior remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999). The Veteran was also provided an opportunity to set forth his contentions at a Board hearing conducted in October 2009. The record reflects that at this hearing the undersigned set forth the issues to be discussed, focused on the elements necessary to substantiate the claim, and sought to identify any further development that was required to help substantiate the claim. These actions satisfied the duties a Veterans Law Judge has to explain fully the issue and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). Notably, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). 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. The 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 to the veteran's disability, 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), it was held that evidence to be considered in an appeal from an initial disability rating was not limited to that reflecting the then current severity of the disorder. In Fenderson, the Court discussed the concept of the "staging" 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. In January 2008, the RO granted entitlement to service connection for a bilateral hearing loss and assigned a noncompensable evaluation effective September 26, 2007. The Veteran disagreed with the initial disability rating assigned and subsequently perfected this appeal. A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of defective hearing range from noncompensable to 100 percent. The basic method of rating hearing loss involves audiological test results of organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. Puretone threshold average is the sum of puretone thresholds at 1000, 2000, 3000, and 4000 Hertz divided by four. To evaluate the degree of disability of service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. See 38 C.F.R. § 4.85, Diagnostic Code 6100. The current rating criteria include an alternate method of rating exceptional patterns of hearing as defined in 38 C.F.R. § 4.86 (puretone threshold of 55 decibels or more at 1000, 2000, 3000, and 4000 Hertz; puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz). 38 C.F.R. § 4.86. At the November 2007 VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ A 1000 B 2000 C 3000 D 4000 A+B+C+D AVG. RIGHT 10 55 60 65 48 LEFT 10 55 60 60 46 Maryland CNC Word List Speech Recognition testing revealed a speech recognition score of 100 percent in the right ear and a score of 92 percent in the left ear. Application of the results from the November 2007 examination to Table VI in 38 C.F.R. § 4.85 yields findings of Level I hearing in the right ear and Level I hearing in the left ear. Application of these findings to Table VII reveals a noncompensable rating. 38 C.F.R. § 4.85, Diagnostic Code 6100. An exceptional pattern of hearing impairment was not shown, thus, findings on this examination do not warrant consideration under 38 C.F.R. § 4.86. In June 2008, private audiological testing from Hearx, Ltd., revealed puretone thresholds similar to those reported during the November 2007 VA examination; however, unaided speech recognition scores were significantly worse - 80 percent in each ear. As noted above, it is unclear whether the speech discrimination test conducted was the Maryland CNC test. At the March 2009 VA audiological evaluation, the Veteran reported having difficulty hearing speech clearly especially under noisy conditions or where background noise was present. Pure tone thresholds, in decibels, were as follows: HERTZ A 1000 B 2000 C 3000 D 4000 A+B+C+D AVG. RIGHT 10 55 65 65 49 LEFT 10 55 65 70 50 Maryland CNC Word List Speech Recognition testing revealed a speech recognition score of 92 percent in the right ear and a score of 100 percent in the left ear. Application of the results from the March 2009 examination to Table VI in 38 C.F.R. § 4.85 yields findings of Level I hearing in the right ear and Level I hearing in the left ear. Application of these findings to Table VII reveals a noncompensable rating. 38 C.F.R. § 4.85, Diagnostic Code 6100. An exceptional pattern of hearing impairment was not shown, thus, findings on this examination do not warrant consideration under 38 C.F.R. § 4.86. During the October 2009 Board hearing, the Veteran testified that his wife often had to repeat questions directed to him and that he had trouble understanding the television and hearing the telephone when it rang. Hearing Transcript at 3-4. At the May 2010 VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ A 1000 B 2000 C 3000 D 4000 A+B+C+D AVG. RIGHT 20 60 75 65 55 LEFT 10 60 70 80 55 Maryland CNC Word List Speech Recognition testing revealed a speech recognition score of 96 percent in the right ear and a score of 92 percent in the left ear. The examiner diagnosed the Veteran with moderately-severe sensorineural hearing loss. It was noted that the Veteran had difficulty hearing and understanding speech with background noise. The examiner opined that his hearing loss had a significant effect on occupation but no effect on usual daily activities. Application of the results from the May 2010 examination to Table VI in 38 C.F.R. § 4.85 yields findings of Level I hearing in the right ear and Level I hearing in the left ear. Application of these findings to Table VII reveals a noncompensable rating. 38 C.F.R. § 4.85, Diagnostic Code 6100. An exceptional pattern of hearing impairment was not shown, thus, findings on this examination do not warrant consideration under 38 C.F.R. § 4.86. Considering the objective evidence of record, findings on VA examinations in November 2007, March 2009, and May 2010 all correspond to a noncompensable evaluation under Table VII. The Board notes that the June 2008 private speech recognition scores were significantly worse (80 percent in each ear); however, subsequent VA examinations revealed speech recognition scores no worse than 92 percent. The Veteran has reported that his hearing loss has progressively worsened over time. Therefore, the June 2008 private speech recognition scores appear to be an anomaly and not representative of a distinct period of worsened symptoms followed by a period of improved symptoms so as to warrant a staged rating. In light of the other evidence of record, the Board finds that even assuming the private audiologist used the Maryland CNC test, the results lack probative value and are not representative of the Veteran's actual hearing impairment during that time period. For these reasons, the Board finds that at no time since September 26, 2007, has the Veteran's hearing loss disability warranted a compensable evaluation. The Board has considered the Veteran's lay statements. The Veteran is competent to report his observations with regard to his hearing loss, including difficulty understanding speech, hearing the television, and hearing the telephone ring. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds his statements consistent with the rating assigned. To the extent he argues his symptomatology is more severe, his statements must be weighed against the other evidence of record. Here, the Board finds the specific examination findings of trained health care professionals to be of greater probative weight than the Veteran's more general lay assertions. The Board has considered the application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. If the 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. Thun v. Shinseki, 573 F.3d 1366 (Fed. Cir. 2009). Here, the rating criteria reasonably describe the Veteran's disability and symptomatology. He has complained of difficulty understanding conversation and hearing in noisy environments. Difficulties understanding speech due to hearing loss are contemplated in Diagnostic Code 6100. The criteria are based, at least partially, on speech recognition scores. Furthermore, Diagnostic Code 6100 provides for higher ratings for more severe impairment of hearing. Based on the foregoing, the Board finds that the rating criteria clearly contemplate the Veteran's disability picture. They include symptomatology of the type reported by the Veteran and by medical professionals on clinical evaluation. Therefore, the threshold factor for extraschedular consideration under step one of Thun has not been met. As the disability picture is contemplated by the Rating Schedule, the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). The Board considered the Court's decision in Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In Rice, the Court held that a claim for total disability rating based on individual unemployability is part of an increased rating claim when such claim is raised by the record. Here, however, the Veteran has not claimed nor does the evidence indicate that he is unemployable due to his service-connected bilateral hearing loss. Accordingly, a claim of entitlement to a total disability evaluation based on individual unemployability due to bilateral hearing loss is not deemed to be a component of the current appeal. In reaching the above conclusion, 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, an initial compensable disability rating for bilateral hearing loss from September 26, 2007, is denied. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to an initial compensable evaluation for bilateral hearing loss is denied. ____________________________________________ Alexandra P. Simpson Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs