Citation Nr: 1334423 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 09-32 206A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to a compensable rating for bilateral hearing loss prior to February 12, 2013. 2. Entitlement to a rating in excess of 10 percent for bilateral hearing loss since February 12, 2013. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1944 to March 1946 and September 1950 to November 1951. He also served in the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. This case was remanded for further development in May 2013. In July 2013 the Appeals Management Center (AMC) raised the Veteran's evaluation for bilateral hearing loss to 10 percent, effective February 12, 2013. As the Veteran has not been granted the maximum benefit permitted under the regulations, his claim remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The Board finds that the AMC completed all development requested in the May 2013 remand and issued a July 2013 supplemental statement of the case. Review of the record reflects substantial compliance with the Board's remand prior remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). A review of Virtual VA reveals that it contains no additional documents relevant to this claim. This appeal was processed using the Veterans Benefits Management System paperless claims processing system. Accordingly, any future consideration of the appellant's case should be applied to this electronic record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Prior to February 12, 2013, the Veteran's bilateral hearing loss was not manifested by worse than Level II hearing in the right ear and Level III hearing in the left ear. 2. Since February 12, 2013, the Veteran's bilateral hearing loss was not manifested by worse than Level II hearing in the right ear and Level VIII hearing in the left ear. CONCLUSIONS OF LAW 1. Prior to February 12, 2013, the criteria for a compensable evaluation for bilateral hearing loss were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2013). 2. Since February 12, 2013, the criteria for a rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.10, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002), redefined VA's duty to notify and assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). In this case, in letters dated in July 2008 and June 2009, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for an increased rating, to include what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. He was advised how disability ratings and effective dates are assigned. The case was readjudicated in July 2013. VA has made reasonable efforts to assist the appellant by obtaining relevant records which he has adequately identified. This includes securing service, VA, and private treatment records and providing VA examinations. The Veteran was notified and is aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. 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). Laws and Regulations Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct 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. Evaluations of defective hearing range from non-compensable (0 percent) to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 3.385 (2013). To evaluate the degree of disability from bilateral service-connected defective hearing, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, Tables VI and VII, Diagnostic Code 6100. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). An exceptional pattern of hearing impairment occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average puretone threshold is 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Analysis The Veteran contends that his hearing loss disability is of sufficient severity to warrant a compensable evaluation prior to February 12, 2013 and in excess of 10 percent since February 12, 2013. In February 2002, the RO initially granted entitlement to service connection for bilateral hearing loss and assigned a noncompensable evaluation. In July 2008, the Veteran submitted the current claim on appeal asserting that his hearing had become worse and warranted a higher evaluation. In August 2008, the Veteran was afforded a VA audiological examination to determine the current severity of his hearing loss disability. The Veteran reported that he had difficulty understanding conversation and that his hearing was decreasing. The examiner diagnosed the Veteran with mild to moderate sensorineural hearing loss in the left ear and moderate to severe sensorineural hearing loss in the right ear. Puretone threshold testing was performed, with the following results, in decibels: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 15 15 45 75 38 LEFT 20 15 35 50 30 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 82 percent in the left ear. Applying the findings from the August 2008 VA examination to Table VI in 38 C.F.R. § 4.85 yields a finding of a Level II hearing loss in the right ear and a Level III hearing loss in the left ear. Where hearing loss is at Level II in one ear and Level III in the other ear, a noncompensable rating is assigned under Table VII. Id. In March 2010, the Veteran was afforded an additional VA audiological examination. The Veteran reported that he could not hear well and that he had to watch television with the volume set very loud. He reported some left ear pain and difficulty using hearing aids. The examiner noted that there were no significant effects on the Veteran's occupational functioning. The examiner diagnosed the Veteran with normal to severe sensorineural hearing loss in the right ear and normal to moderately severe sensorineural hearing loss in the left ear. Puretone thresholds on this examination, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 20 20 55 80 44 LEFT 20 20 45 60 36 Speech audiometry revealed speech recognition ability of 86 percent in the right ear and 80 percent in the left ear. Applying the findings from the May 2012 VA examination to Table VI in 38 C.F.R. § 4.85 yields a finding of a Level II hearing loss in the right ear and a Level III hearing loss in the left ear. As stated above, where hearing loss is at Level II in one ear and Level III in the other ear, a noncompensable rating is assigned under Table VII. Id. The Veteran has also received regular treatment and evaluation for hearing loss at the VA Boston Healthcare System. At a February 2012 audiology consult, the Veteran reported that his hearing had gotten worse in both ears and that he was not gaining any benefit from hearing aids. The examiner found bilateral moderate sloping to profound sensorineural hearing loss from 3000 to 8000 Hertz. Puretone thresholds test results were as follows: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 20 20 50 75 41 LEFT 20 20 45 60 36 Speech audiometry revealed speech recognition ability of 88 percent in each ear. Applying the findings from the February 2012 evaluation to Table VI in 38 C.F.R. § 4.85 yields a finding of Level II hearing loss in the right ear and Level II hearing loss in the left ear. Where hearing loss is at Level II in one ear and Level II in the other ear, a noncompensable rating is assigned. Id. In April 2011 and January 2013, the Veteran reported having increasing difficulty with his hearing. In January 2013, he reported having difficulty following conversations or hearing when there was background noise present. In March 2013, the Veteran underwent an otolaryngology examination at which he reported having worsening hearing in his left ear with occasional sharp pain. He also reported that his hearing aids did not improve his hearing. The examiner noted that the Veteran's hearing was adequate for conversation. The examiner found mild sloping to profound sensorineural hearing loss with good word recognition in quiet in the right ear and severe to profound mixed hearing loss with fair word recognition ability in quiet in the left ear. Puretone thresholds testing performed in a February 12, 2013 audiology consult were reviewed, and the results were as follows: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 30 30 55 80 49 LEFT 70 85 90 100+ 86 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 72 percent in the left ear. Applying the February 2013 findings to Table VI in 38 C.F.R. § 4.85 yields a finding of a Level II hearing loss in the right ear and a Level VII hearing loss in the left ear. As the Veteran's puretone thresholds at each of the four specified frequencies were 55 decibels or higher for the left ear, the 38 C.F.R. § 4.86(a) provision can be applied. Applying the findings from the February/March 2013 examination yields a finding of Level VII hearing loss (Table VI) or Level VIII hearing loss (Table VIA) in the left ear and Level II hearing loss in the right ear. 38 C.F.R. §§ 4.85; 4.86(a). Where hearing loss is at Level VIII in one ear and Level II in the other ear, a 10 percent rating is assigned under Table VII. Id. At an April 2013 audiology assessment, audiometric testing revealed the following puretone thresholds: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 20 20 50 75 41 LEFT 25 20 50 70 41 No speech recognition tests were performed. Hence, this audiological examination therefore does not conform to the VA requirements for examination for hearing impairment, and cannot be considered in the current claim. 38 C.F.R. § 4.85. The Veteran also submitted a private evaluation from the Massachusetts Eye and Ear Infirmary from March 2008. The private audiologist stated that the Veteran reported difficulty understanding speech in group situations and that he "may experience communication difficulties in adverse listening situations." This audiological examination did not conform to the VA requirements for examination for hearing impairment because it did not include the Maryland CNC speech discrimination test; rather, the report indicated that the W22 word recognition test was performed. 38 C.F.R. § 4.85. Assuming, however, that this examination could be considered for rating purposes under 38 C.F.R. § 4.85, the findings in the examination are relatively consistent with the subsequent VA findings during that staged period on appeal, and would not warrant any higher evaluation for hearing loss. Applying the perceived values of the March 2008 audiological graph to Table VI in 38 C.F.R. § 4.85 yields a finding of Level I hearing loss in the right ear and Level II hearing loss in the left ear. Where hearing loss is at Level I in one ear and Level II in the other ear, a noncompensable rating is assigned under Table VII. Id. The Veteran testified at a March 2013 Board hearing that when in crowds or an area with background noise, he was unable to understand what people are saying and tried to use lip reading to aid in comprehension. He stated that he had been given hearing aids by VA, but they had not helped. Indeed, he stated that his hearing became worse after his 2010 VA examination. The Veteran also stated that in crowds voices sound very muffled and that he had to turn the volume on his television up very loud to hear it. Written statements from the Veteran, his friends, and colleagues also confirm that the appellant was having increasing difficulty understanding conversation, and that he was frustrated by having to ask people to repeat themselves. On review of the file, it is evident that prior to February 12, 2013, the criteria for compensable rating under Diagnostic Code 6100 were not met. Although the audiological evaluations of August 2008 and March 2010 clearly show the Veteran had hearing loss, the hearing loss did not meet the criteria for a compensable evaluation. 38 C.F.R. § 4.85. The August 2008 and March 2010 examinations were conducted in accordance with 38 C.F.R. § 4.85(a). The March 2010 examiner discussed with the Veteran his symptoms and the functional effects of hearing loss on his daily life activities and occupational functioning. See 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). Accordingly, this examination is fully in compliance with the provisions of VA regulations and is afforded great probative value in determining the Veteran's level of hearing impairment. The findings of these examinations are also in accordance with the hearing levels reported in the Veteran's VA treatment evaluations. At no time prior to February 12, 2013 is there any evidence that the Veteran had hearing loss of a severity that could warrant a compensable rating under 38 C.F.R. § 4.85. The Board finds, however, that as of February 12, 2013, objective audiological testing shows that the Veteran's bilateral hearing loss had worsened, and that it warrants a 10 percent rating from that point onward. See Hart, 21 Vet. App. 505. The February 2013 test findings, also evaluated in the March 2013 treatment record, show that the Veteran's puretone thresholds and speech recognition ability in his left ear had significantly deteriorated, to a degree that now allows for a 10 percent rating under 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. At no time since February 12, 2013, however, does the medical evidence of record demonstrate that the Veteran's hearing loss had worsened to a degree that would allow for a finding of a rating higher than 10 percent. The Board has taken into consideration the Veteran's complaints regarding the impact of hearing loss on his daily life, but as noted above, the assignment of disability ratings for hearing impairment is primarily derived from a mechanical formula based on levels of puretone threshold average and speech discrimination. The Board also acknowledges the Veteran's belief that his current hearing impairment is deserving of higher disability ratings than those assigned. However, the audiometric examinations during the appellate term show that the Veteran's bilateral hearing loss did not warrant a compensable evaluation prior to February 12, 2013 or in excess of 10 percent since February 12, 2013. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). The most probative medical evidence as to the nature of the appellant's hearing loss are the audiometric findings, and those reveal that the appellant's hearing loss does not warrant ratings in excess of those now assigned. There is no medical evidence of record which indicates that the Veteran's measurable hearing loss is worse than demonstrated in his previous VA examinations, nor has any fault with the medical examinations of record been shown. There is no evidence of record, nor has the Veteran ever asserted, that his hearing loss affected his occupational functioning or that it contributed in any way to his current unemployment. The March 2010 examiner specifically noted that the Veteran was able to have verbal conversations and that his hearing loss had no impact on occupational functioning. The Veteran has consistently asserted that his primary problems arising from his hearing loss is difficulty hearing the television, using the telephone, or conversing in crowds, but he has not asserted any areas where hearing loss has affected his ability to adequately function socially or occupationally. See Martinak, 21 Vet. App. at 455-56. The Board concludes that the medical evaluations of record are of greater probative value than the Veteran's allegations regarding the severity of his hearing loss and that his functional impairment is adequately reflected by those medical findings. Accordingly, the preponderance of the evidence is against the claim of entitlement to a compensable rating prior to February 12, 2013 or for a rating in excess of 10 percent since February 12, 2013. As a final matter, the Board has also considered whether the Veteran's bilateral hearing loss presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2013); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extra-schedular 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. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology. 38 C.F.R. § 4.85. The Veteran's tinnitus has been granted service connection separately, and he receives a separate rating for this disorder. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. In sum, there is no basis for assignment of a compensable rating prior to February 12, 2013 or for a rating in excess of 10 percent since February 12, 2013, for the Veteran's service-connected bilateral hearing loss. In reaching the conclusion above, 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, that doctrine is not applicable in the instant appeal. 38 U.S.C.A. § 5107(b). ORDER Prior to February 12, 2013, entitlement to a compensable disability rating for bilateral hearing loss is denied. Since February 12, 2013, entitlement to a rating in excess of 10 percent for bilateral hearing loss is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs