Citation Nr: 1334463 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 10-26 826 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a compensable rating for bilateral hearing loss prior to October 4, 2011. 2. Entitlement to a rating higher than 20 percent as of October 4, 2011. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to April 1983. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in April 2013. A transcript of the hearing is associated with the claims file. In June 2013, the Board remanded this case for further development. During the pendency of this appeal, the Veteran's rating for bilateral hearing loss was increased to 20 percent, effective October 4, 2011. See August 2013 rating decision. Inasmuch as this increase does not encompass the entire appeals period, higher ratings are available, and the Veteran is presumed to be seeking the maximum available benefit for a given disability, the claims for higher ratings, as reflected on the title page, remain viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 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. 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 October 4, 2011, audiometric testing consistently shows that the Veteran had Level I hearing impairment in both ears. 2. As of October 4, 2011, audiometric testing shows, at worst, that the Veteran has Level V hearing impairment in both ears. CONCLUSIONS OF LAW 1. Prior to October 4, 2011, the criteria for a compensable rating for bilateral hearing loss were not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code (DC) 6100 (2013). 2. As of October 4, 2011, the criteria for a rating higher than 20 percent for bilateral hearing loss were not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code (DC) 6100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the Veteran was sent a letter in April 2009 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at an April 2013 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Board's June 2013 remand, VA sent the Veteran a July 2013 letter, asking him to identify and private health care providers and to either submit these private records to VA himself or complete and return a VA Form 21-4142 so that VA could obtain these records on his behalf. The Veteran did not respond. Thereafter, VA obtained additional VA treatment records and associated them with the claims file. VA also provided the Veteran with a medical examination in July 2013. This examination contained all information needed to rate the disability. Indeed, the examiner reviewed the objective evidence of record, documented the Veteran's current complaints, and performed a thorough clinical evaluation. Therefore, this examination is adequate for VA purposes. During the pendency of the appeal, the October 2011 VA evaluation was interpreted and the Veteran was awarded a staged rating; thereby rendering moot the Board's request that this evaluation be interpreted by the VA examiner. Thus VA has substantially complied with the June 2013 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). The United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). At the hearing the undersigned identified the issue, sought information as to treatment to determine whether all relevant records had been obtained, and sought information as to any changes in the disability since the last examination. Ultimately the claim was remanded for a new examination. The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with these duties; they have not identified any prejudice in the conduct of the Board hearing. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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 v. Principi, 16 Vet. App. 183 (2002). Analysis The Veteran was originally granted service connection for bilateral high frequency hearing loss in an August 1983 rating decision. He was assigned a noncompensable (0 percent) evaluation, effective May 1, 1983. The Veteran did not appeal that decision and no new and material evidence was received within one year of its issuance. Thus, that rating decision became final. See 38 C.F.R. §§ 3.156(b), 20.1103. That rating was continued in a May 1997 rating decision. Again, the Veteran did not appeal the May 1997 decision and no new and material evidence was received within one year of its issuance. Thus, that rating decision became final as well. See 38 C.F.R. §§ 3.156(b), 20.1103. The Veteran filed the current claim for an increased rating in April 2009. When 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. Francisco v. Brown, 7 Vet. App. 55 (1994). As noted in the Introduction, the August 2013 rating decision increased the Veteran's rating for bilateral hearing loss rating to 20 percent, effective October 4, 2011. Thus, the Veteran's evaluation has been staged during the pendency of this appeal. See Hart v. Mansfield, 21 Vet. App. 505 (2007)(allowing for staged ratings for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings). As explained below, the Board finds that the current staging is appropriate. Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155. Hearing impairment is evaluated under Diagnostic Code 6100, with evaluations ranging from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per second (hertz). The pure tone threshold averages are determined by adding the results for each of these four specified Hertz levels (1000, 2000, 3000, and 4000) and then dividing that sum by four. 38 C.F.R. § 4.85(d). To evaluate the degree of disability for service-connected hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85. The Court has held that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). 38 C.F.R. § 4.85(a). While the Veteran is competent to provide lay evidence regarding his difficulties hearing; he is not competent to quantify that difficulty into the hearing threshold levels required for evaluation under Diagnostic Code 6100. Prior to October 4, 2011 A September 2008 VA audiology consult shows binaural hearing loss. The audiogram results recorded in the narrative differ slightly from those contained on the chart. In the narrative, the Veteran's pure tone thresholds, in decibels, were noted as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 45 60 65 48.75 (49) LEFT 30 65 - 70 55 Speech recognition was 100 percent in the right ear and 92 percent in the left ear. Hearing aids were ordered. Under Table VI, both ears are assigned Roman numeral "I." Under Table VII, if both the poorer ear and the better ear are rated "I," then a noncompensable (0 percent) rating is warranted. See 38 C.F.R. § 4.85. The Board has also considered the special provisions of 38 C.F.R. §§ 4.86(a) and (b). Specific provisions are in effect for "exceptional patterns of hearing impairment," specifically cases where the pure tone thresholds at each of the four specified frequencies are 55 decibels or more, or where the pure tone thresholds are 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. However, these audiometric results do not show an exceptional pattern of hearing impairment for which application of either of these provisions is warranted. While there is a sharp increase in the pure tone threshold average from the 1000 Hertz level to the 2000 Hertz level, it falls short of the criteria for 38 C.F.R. § 4.86(b). Oddly, in the accompanying chart, also dated September 2008, the Veteran's pure tone thresholds were: HERTZ 1000 2000 3000 4000 Average RIGHT 20 45 50 60 43.75 (44) LEFT 20 55 65 70 52.5 (53) The pure tone thresholds shown vary slightly from those listed in the narrative. However, assuming the same speech recognition scores, this variation does not change the outcome as both ears are assigned Roman numeral "I" under Table VI and, again, neither of the exceptional patterns of hearing impairment contemplated by 38 C.F.R. § 4.86 are shown. See 38 C.F.R. §§ 4.85, 4.86. As both the poorer ear and the better ear are rated "I," a noncompensable (0 percent) rating is warranted. See 38 C.F.R. § 4.85, Table VII. A VA audiogram from April 2009 shows that the Veteran's pure tone thresholds were: HERTZ 1000 2000 3000 4000 Average RIGHT 20 50 55 55 45 LEFT 25 60 65 75 56.25 (56) Speech discrimination scores were 100 percent bilaterally. Again, both ears are assigned Roman numeral "I" under Table VI and neither of the exceptional patterns of hearing impairment contemplated by 38 C.F.R. § 4.86 are shown. See 38 C.F.R. §§ 4.85, 4.86. Since both ears are rated "I," a noncompensable (0 percent) rating is warranted. See 38 C.F.R. § 4.85, Table VII. In May 2009, the Veteran underwent a VA audio examination in conjunction with this claim. At that time, his pure tone thresholds were: HERTZ 1000 2000 3000 4000 Average RIGHT 30 50 65 70 53.75 (54) LEFT 35 60 70 75 60 Maryland CNC word list speech recognition score was 96 percent bilaterally. These measurements likewise warrant assignment of Roman numeral "I" under Table VI for both ears. See 38 C.F.R. § 4.85. Furthermore, these audiometric results do not show an exceptional pattern of hearing impairment. Therefore, a noncompensable (0 percent) rating is warranted. See 38 C.F.R. § 4.85, Table VII. In his August 17, 2009 notice of disagreement (NOD), the Veteran argued that his hearing had gotten worse and the VA audiograms did not accurately reflect his hearing loss. In his June 2010 VA Form 9, the Veteran specifically stated that he disagreed with the recorded speech recognition scores, stating that he constantly had to ask people to repeat themselves and would avoid conversations in a crowded setting. He also argued that he believed his disability qualified as exceptional hearing impairment. Based on the objective data of record, there is no support for assignment of a compensable rating for the Veteran's bilateral hearing loss prior to October 4, 2011. The audiograms prior to October 2011 consistently show Level I hearing impairment in both ears. The Veteran's subjective complaints of worsening hearing are insufficient to show the hearing threshold levels required for a compensable evaluation. As such, the Veteran's bilateral hearing loss did not warrant a compensable rating prior to October 4, 2011. See 38 C.F.R. § 4.7. As of October 4, 2011 An October 4, 2011 VA audiology evaluation shows pure tone thresholds as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 30 50 55 70 51.25 (51) LEFT 30 60 70 70 57.5 (58) Speech recognition was 72 percent in the right ear and 68 percent in the left ear. Due to this significant drop in speech recognition scores, the Veteran's ears both warranted assignment of Roman numeral "V." See 38 C.F.R. § 4.85. Again, these audiometric results do not show an exceptional pattern of hearing impairment under 38 C.F.R. § 3.86. Under Table VII, if both the poorer ear and the better ear are rated "V," then a 20 percent rating is warranted. See 38 C.F.R. § 4.85. As noted in the June 2013 remand, the Veteran submitted a private audiogram dated March 2013. Unfortunately, that was inadequate for VA evaluation purposes. See 38 C.F.R. § 4.85(a)(providing that "[a]n examination for hearing impairment 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"). At the time of his April 2013 hearing, the Veteran testified that he had difficulty understanding people and had to ask them to repeat themselves. In July 2013, the Veteran underwent a VA examination in conjunction with this claim. At that time, his pure tone thresholds were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 55 60 65 53.75 (54) LEFT 35 60 70 75 60 Speech recognition was 72 percent in the right ear and 76 percent in the left ear. Additional testing showed abnormal ipsilateral and contralateral acoustic reflexes. The Veteran reported difficulty understanding speech when there is background noise and that he had to face people when they spoke to him. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007)(finding that a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report in addition to dictating objective test results). Under Table VI, the right ear is assigned Roman numeral "V" and the left ear is assigned Roman numeral "IV." Under Table VII, if the poorer ear is rated "V" and the better ear is rated "IV," then a 10 percent rating is warranted. See 38 C.F.R. § 4.85. The recorded audiometric results do not show an exceptional pattern of hearing impairment that would warrant application of the special provisions of 38 C.F.R. § 4.86(a) and (b). Throughout the appeals period, the Veteran continues to have a sharp increase in the pure tone threshold average from the 1000 Hertz level to the 2000 Hertz level, but this increase falls short of the criteria for 38 C.F.R. § 4.86(b). Based on the above, the Veteran's bilateral hearing loss at the time of the October 4, 2011, VA audiology evaluation was sufficiently severe to warrant a 20 percent rating. The next higher rating of 30 percent would require the Veteran's hearing disability either ear to increase to the VI level. See 38 C.F.R. § 4.85, Table VII. In order to do that, the Veteran's hearing impairment would have to be shown to have a 15 Hertz worse pure tone threshold average in his right ear than the October 2011 evaluation, a 6 percent worse speech discrimination than in his right ear the October 2011 evaluation, a 8 Hertz worse pure tone threshold average in his left ear than the October 2011 evaluation, or a 2 percent worse speech discrimination than in his left ear the October 2011 evaluation. These measurements are not shown in the medical evidence of record. The, the Veteran's bilateral hearing loss did not warrant a rating higher than 20 percent prior to October 4, 2011. See 38 C.F.R. § 4.7. Moreover, the later July 2013 examination shows better speech recognition in the Veteran's left ear and, as a result, the Veteran's hearing impairment at that time a warranted a 10 percent rating. Nevertheless, the Board will not disturb the existing staged rating of 20 percent. The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disability, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. As the rating schedule is adequate to evaluate the disabilities, referral for extraschedular consideration is not in order. ORDER A compensable rating for bilateral hearing loss prior to October 4, 2011, is denied. A rating higher than 20 percent as of October 4, 2011, is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs