Citation Nr: 1334278 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 10-38 080 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a disability evaluation in excess of 10 percent for a bilateral hearing disability. REPRESENTATION Veteran represented by: Marcheta L. Gillam, Attorney ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1988 to March 1992. This matter come before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran had a hearing before a RO Decision Review Officer (DRO) in January 2013. A transcript of that hearing is of record. The Board notes that the Veteran raised a claim for a disability rating in excess for tinnitus in August 2009. He repeated that claim in December 2009 and September 2010. A decision on that issue has yet to be made. The issue of entitlement to an increased rating for tinnitus is thereby referred to the RO for appellate consideration. FINDING OF FACT The Veteran's bilateral hearing loss has been manifested by no more than level I hearing in his right ear and no more than level XI in his left ear. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 (2013). (CONTINUED NEXT PAGE) REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his attorney has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in August 2009 of the criteria for establishing an increased rating, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in November 2009. Nothing more was required. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO associated the Veteran's service treatment records, private records and VA treatment records with the claims file. Neither the Veteran nor his attorney has identified any treatment records aside from those that are already of record. Thus, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. VA provided the Veteran with an audiological examination in October 2009 and on February 2013 to determine the status of the Veteran's right ear, hearing loss disability. These examinations are adequate as the examination reports shows that the examiners considered the relevant history of the Veteran's hearing loss, and the examiners provided a sufficiently detailed description of the current state of the Veteran's disability. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). The Board acknowledges an examination was conducted in September 2009 examination. However, the examiner suggested a reexamination due to inadequacies. Such was done in October 2009. The Board will not discuss this examination as it is patently inadequate. Discussion of the Veteran's January 2013 DRO hearing is also necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. Entitlement to an increased rating for hearing loss was identified as an issue at the hearing. Information was elicited from the Veteran concerning the nature and severity of his hearing loss. In particular, the Veteran discussed his concern over how he believed his October 2009 VA examination did not adequately represent the severity of his hearing loss. Such triggered the request for the February 2013 examination. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A , or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. Increased Evaluation The evaluation of service connected disabilities is based on the average impairment of earning capacity they produce as determined by considering current symptomatology in light of appropriate rating criteria. 38 U.S.C.A. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet App. 589 (1991). In addition, the entire history of the Veteran's disability is also considered. Consideration must be given to the ability of the Veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10. If there is a question as to which of the two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 28 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board acknowledges that a claimant may experience multiple degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Disability ratings for hearing loss disability are derived from mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz. To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters. 38 C.F.R. § 4.85, DC 6100 (2013). Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Id. The Board acknowledges for exceptional hearing impairment defined as pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are 55 decibels or more, or when the pure tone threshold are 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear is to be evaluated separately. See 38 C.F.R. § 4.86 (2013). The Board acknowledges that, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the U.S. Court of Appeals for Veterans Claims (Court) held that, relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in final audiological report. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) Merits of the Claim The record shows that entitlement to service connection for bilateral hearing loss was established and evaluated as noncompensable in an October 1992 RO rating decision. The noncompensable rating was increased to 10 percent in a June 2005 rating action. The rating remained in effect until the Veteran filed his claim for an increased rating in August 2009. A review of the evidence of record reveals that the Veteran was afforded VA audiological examinations for compensation purposes in October 2009 and February 2013. During the October 2009 audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 30 35 55 48 LEFT 70 70 75 80 74 Maryland CNC Word List Speech Recognition Score revealed speech recognition ability of 96 percent in the right ear and 20 percent in the left ear. During the February 2013 audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 25 25 50 31 LEFT 80 75 80 80 79 Maryland CNC Word List Speech Recognition Score revealed speech recognition ability of 92 percent in the right ear and 16 percent in the left ear. Utilizing first Table VI, the Veteran's right ear hearing loss is placed within the parameters of "Roman numeral I" for both his October 2009 and February 2013 VA examinations. Turning the Veteran's left ear, the hearing loss for this ear is placed within the parameters of "Roman numeral XI" for both his October 2009 and February 2013 VA examinations. See 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100 (2013). Second, utilizing Table VII with "Roman numeral I" and "Roman numeral XI" the results indicate that the Veteran's bilateral hearing disability falls within a 10 percent evaluation. See 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100 (2013). However, the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) were in excess of 55 decibels in the left ear at both examinations. The left ear Roman numeral designation for hearing impairment may thereby be designated from either Table VI or Table VIa. 38 C.F.R. § 4.86(a). The designation under Table VI for the left ear is level XI, and the designation from Table VIa is VII (based on the 2013 examination). However, the puretone threshold average remains the same for the right ear. Whether level XI or level VII is used for the designation of the left ear, the rating remains the same and warrants no more than a 10 percent evaluation. The Board will now examine two private medical audiological examinations from January 28, 2010 and January 20, 2010. The Board first notes that it can interpret graphical data. See Kelly v. Brown, 7 Vet. App. 471 (1995). Turning to the January 28, 2010 private audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 15 10 15 40 20 LEFT 80 75 75 70 75 Similar findings were made on the January 20, 2010 private audiological examination wherein pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 30 30 35 40 34 LEFT 75 70 75 75 75 The Veteran speech discrimination results were a 100 percent (for both private examinations) in the right ear and 36 percent (for the January 20, 2010 examination) and 60 percent (for the January 28, 2010 examination) in the left ear. The Board cannot discern whether these results were under Maryland CNC test or not. However, if the Board were to assume that the test were under the Maryland CNC test, the scores would not be beneficial to the Veteran when compared to the scores in the VA examinations speech recognition results. Therefore, the Board will disregard these results and find any error by not analyzing these scores as not prejudicial because a request for clarification would not bear greatly on the probative value of either private examiner's opinions. See Savage v. Shinseki, 24 Vet. App. 259. Consideration has also been given to the Veteran's personal assertions in support of his claim. The Veteran is competent, as a layperson, to report on that as to which he has personal knowledge, such as listening to the television at higher volumes or lip reading to assist in understanding conversations. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). But as a layperson, without the appropriate medical training and expertise, he is not competent to provide a probative (persuasive) opinion on a medical matter, especially the severity of his bilateral hearing loss disability in terms of the applicable rating criteria. Rather, this necessarily requires appropriate medical findings regarding the extent and nature of his bilateral hearing loss, including audiometric testing for puretone thresholds. Since he is not competent to provide probative evidence in this regard, there is necessarily no need to additionally consider the credibility of his lay statements. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). There is no evidence his bilateral hearing loss disability has been more than 10 percent disabling at any time since his claim was filed. The Board cannot "stage" this rating. Thus, a the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for his service-connected bilateral hearing loss disability, the "benefit-of-the-doubt" rule is not applicable, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). The Board has considered entitlement to an increased evaluation on an extraschedular basis, but application of extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available scheduler 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. Thun v. Peake, 22 Vet. App. 111 (2008). Here, there has been no showing that the Veteran's disability picture could not be contemplated adequately by the applicable schedular rating criteria discussed above. The Veteran's bilateral hearing loss was applied to the applicable rating criteria and precedential case law. Indeed, the October 2009 and February 2013 examiners also provided opinion as to whether the Veteran's hearing loss is of such severity as to warrant restriction of his activities and employment. See Martinak, 21 Vet. App. at 455. The 2013 examiner explicitly remarked that the Veteran's bilateral hearing loss did impact ordinary conditions of life. The Board finds no indication there is the type of marked interference with his employment, above and beyond that contemplated by his schedular rating, which would invoke extra-schedular consideration. Rather, the limitations caused by decreased hearing acuity, such as difficulty communicating and difficulty perceiving acoustical cues in the environment, are the natural result of this sort of disability and have been considered in the rating criteria. The occupational limitations from his hearing loss are not unique to this particular Veteran so as to require additional consideration. Although the diagnostic codes in this case allow for higher ratings, the Board fully explained why the higher ratings were not warranted. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, if a Veteran asserts that he is unable to secure and follow a substantially gainful employment, it is presumed that the Veteran is raising a claim for total disability due to individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447 (2009); 38 C.F.R. 4.16(b). The Veteran has not raised the issue of whether he able to secure and follow gainful employment due to his service connected disability. To the contrary, at his 2013 examination, he reported that he worked as a forklift operator. ORDER Entitlement to an increased rating in excess of 10 percent for bilateral hearing loss is denied. ____________________________________________ MICHEAL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs