Citation Nr: 1334112	
Decision Date: 10/28/13    Archive Date: 11/06/13

DOCKET NO.  13-07 828	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Entitlement to an initial compensable disability evaluation for right ear hearing loss.


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

M. Sopko, Associate Counsel



INTRODUCTION

The Veteran had active service from May 1971 to February 1973.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.


FINDING OF FACT

The Veteran has Level I hearing loss in his right ear.


CONCLUSION OF LAW

The criteria for an initial compensable disability evaluation for right ear hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Introductory Matters

In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit  (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). 

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. 
§ 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). 

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 ("VCAA") describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. 
§§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004).

This matter was filed as a fully developed claim (FDC) pursuant to VA's program to expedite claims.  Under this framework, a claim is submitted in a "fully developed" status, limiting the need for further development of the claim by VA.  When filing a FDC, a Veteran is to submit all evidence relevant and pertinent to his claim other than service treatment records and treatment records from VA medical centers, which will be obtained by the VA.  Under certain circumstances, additional development may still be required prior to the adjudication of the claim, such as obtaining additional records and providing a VA medical examination to the Veteran.  See VA Form 21-526EZ. 

The notice that accompanies the FDC form informs the Veteran of what evidence is required to substantiate a claim for service connection and of the Veteran's and VA's respective duties for obtaining evidence.  The notice also provides information on how VA assigns disability ratings in the event that service connection is established.  See VA Form 21-526EZ.  Thus, the notice that is part of the claim form submitted by the Veteran satisfies the VCAA duty to notify.

VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). 

To participate in the fully developed claims process, the Veteran agreed to submit all private treatment records relevant to the claim.  He acknowledged in his claim that he had none to submit.  The RO has obtained the Veteran's service treatment records and VA treatment records.  Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Thus, the Board finds that all necessary development has been accomplished. 

VA has a duty to obtain a medical examination or opinion when such examination or opinion is necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4).  The Veteran was afforded a VA medical examination in February 2012.  The examination was adequate because it was based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims file, and appropriate diagnostic tests. The Compensation and Pension (C&P) hearing examination worksheets were revised to include a discussion of 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 (2012). In addition to dictating objective test results, the Court has held that a VA 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, 455 (2007). 

The February 2012 examination report included questions regarding the impact of the Veteran's hearing problems on his occupation and daily life. The examiner noted that hearing loss made it difficult for the Veteran to understand conversations.

No further notice or assistance to the appellant is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. 183.

Increased Evaluation Claim

The Veteran contends that his right ear hearing loss is more severe than reflected by its initial noncompensable evaluation.  Because he has Level I hearing loss in his right ear, his claim will be denied. 

Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2012). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 

The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. If, as here, there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based upon the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). See also AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original rating remains in controversy when less than the maximum available benefit is awarded); Hart v. Mansfield, 21 Vet. App. 505 (2007). 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 

The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed); Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). 

The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Pertinent to a claim for an increased rating, lay testimony is competent when it describes symptoms, which supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (holding that, in general, for the need for a VA examination to arise, a claimant would only need submit his competent testimony that symptoms, reasonably construed as related to the service-connected disability, have increased in severity since the last evaluation.). 

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 

The Veteran's right ear hearing loss is currently assigned a noncompensable evaluation under Diagnostic Code 6100. 38 C.F.R. §§ 4.85, 4.86.

Impaired hearing will be considered a disability only after threshold requirements are met. See 38 C.F.R. § 3.385. Once a disability is established, levels of hearing loss are determined by considering the puretone threshold average and speech discrimination percentage scores, resulting in a Roman numeral designation for hearing loss. 38 C.F.R. § 4.85(b), Table VI. Disability ratings are assigned by combining the level of hearing loss in each ear. 38 C.F.R. § 4.85(e), Table VII. See Lendenmann v. Principi, 3 Vet. App. 345 (1992) (assignment of 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).

Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination" is used to determine a Roman numeral designation (I through XI) for hearing impairment in each ear based on consideration of speech discrimination as well as puretone threshold averages, unless the examiner certifies that use of the speech discrimination test is not appropriate. In that case, table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used. Table VII, "Percentage Evaluation for Hearing Impairment," is then used to determine the percentage evaluation by combining the Roman numeral of each ear. 38 C.F.R. §§ 3.383, 3.385, 4.85(b). 

The Veteran underwent a VA audiology examination in February 2012. The results, with puretone thresholds in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
30
60
60
LEFT
15
20
15
20
30

For the frequencies 1000 - 4000 Hertz, the average puretone threshold was 41.25 decibels in the right ear. Speech audiometry revealed speech recognition ability of 100 percent in the right ear. The audiologist noted that the Veteran's disability caused him difficulty understanding conversation. This was a description of the effect of his disability on his daily activities. 38 C.F.R. § 4.10. See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007).  

Applying the results of the February 2012 examination to Table VI of the VA regulations yields a Roman numeral value of I in the right ear and I in the left ear (pursuant to 38 C.F.R. § 4.85(f), the Roman numeral value for a non-service connected ear is I). Applying these values to Table VII, the Veteran's right ear hearing loss warrants a noncompensable evaluation. 38 C.F.R. § 4.85, 4.86.  

As the Veteran's hearing loss, when calculated using Table VII, does not warrant a compensable disability evaluation, his claim is denied. The preponderance of the evidence is against the claim so the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56. The Veteran's hearing loss has not met the requirements for a higher rating at any time since the effective date of his award, so the Board may not stage his rating. Fenderson, 12 Vet. App. at 125-26. 

There is no basis for referral for consideration of an extra-schedular rating in this case. 38 C.F.R. § 3.321(b)(1) (2012). The Veteran has not presented any evidence that his right ear hearing loss results in a unique disability that is not addressed by the rating criteria. The Veteran's right ear hearing loss is evaluated under 38 C.F.R. § 4.85, Diagnostic Code 6100, the criteria of which is found by the Board to specifically contemplate the Veteran's level of disability and symptomatology. As noted above, the Veteran's right ear hearing loss is manifested by, at worst, a Level I hearing loss. When comparing this disability picture with the symptoms contemplated by the Schedule, the Board finds that the Veteran's symptoms are adequately contemplated by the disability rating for right ear hearing loss. A rating in excess of the currently assigned rating is provided for certain manifestations of hearing loss, but the medical evidence reflects that those manifestations are not present in this case. The criteria for a noncompensable rating for the Veteran's right ear hearing loss reasonably describe his disability level and symptomatology and, therefore, the currently assigned schedular evaluation is adequate. Thus, there is no basis for referral of the case for consideration of an extraschedular disability evaluation. Thun v. Peake, 22 Vet. App 111 (2008). 


ORDER

An initial compensable disability evaluation for right ear hearing loss is denied.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs