Citation Nr: 1334621	
Decision Date: 10/30/13    Archive Date: 11/06/13

DOCKET NO.  08-06 837A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to an increased schedular rating for residuals of a left ear mastoidectomy and tympanoplasty, with left ear hearing loss, currently rated 10 percent disabling.

2.  Entitlement to an extra-schedular rating for residuals of a left ear mastoidectomy and tympanoplasty with left ear hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. Hager, Counsel


INTRODUCTION

The Veteran served on active duty from November 1970 to November 1973.

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  In that decision, the RO denied an increased rating for the Veteran's left ear disability.

In January 2012, the Board remanded the claim to the RO, via the Appeals Management Center (AMC) for additional development.  For the reasons stated below, the RO/AMC complied with the Board's remand instructions.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  The Board has bifurcated and recharacterized the claims for the reasons stated below. 

The issue of entitlement to an extra-schedular rating for residuals of a left ear mastoidectomy and tympanoplasty with left ear hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC, in Washington, DC.


FINDINGS OF FACT

1.  On VA audiological testing in October 2009, the Veteran's hearing acuity was level II in the left ear.  He is not deaf in the right ear.

2.  On VA audiological testing in February 2012, the Veteran's hearing acuity was level III in the left ear.






CONCLUSION OF LAW

The criteria for an increased schedular rating for residuals of a left ear mastoidectomy and tympanoplasty, with left ear hearing loss, currently rated 10 percent disabling, have not been met.  38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, DC 6100 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VCAA

The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.  Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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 (2006).

In an October 2005 pre-rating letter, the RO notified the Veteran of the evidence needed to substantiate the claim for entitlement to an increased rating for left ear hearing loss disability.  This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).

For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim.  73 Fed. Reg. 23,353 (Apr. 30, 2008).  In any event, the October 2005 letter complied with this requirement.

The Veteran has substantiated his status as a veteran.  The Veteran was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claim, in a December 2008 letter.  This letter also provided additional information regarding disability ratings and the criteria applicable to the Veteran's increased rating claim in compliance with a decision of the Court that was subsequently vacated by the Federal Circuit.  See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).

Contrary to VCAA requirements, some of the VCAA-compliant notice in this case was provided after the initial adjudication of the claim.  Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006).  The timing deficiency was cured by readjudication of the claim in multiple supplemental statements of the case (SSOCs), most recently in March 2012.  Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007).

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).  

In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service private and VA treatment records.  Pursuant to the Board's remand instructions, the RO/AMC obtained the outstanding VA treatment records and associated them with the Virtual VA file and obtained the outstanding treatment records of DR. "G."

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements.  The claim for entitlement to an increased schedular rating for residuals of a left ear mastoidectomy and tympanoplasty, with left ear hearing loss, currently rated 10 percent disabling, is thus ready to be considered on the merits.

Analysis

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned.  38 C.F.R. § 4.7.

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Where, as here, 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).  Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  Here, as explained below, the uniform 10 percent schedular rating is proper.

A schedular rating for hearing loss is determined by a mechanical application of the Rating Schedule to the numeric designations assigned based on audiometric test results.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).  To evaluate the degree of disability from defective hearing, the Rating Schedule establishes 11 auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness.  These are assigned based on a combination of the percent of speech discrimination (Maryland CNC) and the puretone threshold average, as contained in a series of tables within the regulations.  The puretone threshold average is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. These averages are entered into a table of the Rating Schedule to determine the auditory acuity level of each ear (Table VI), and these auditory acuity levels are entered into another table of the Rating Schedule to determine the percentage disability rating (Table VII). 38 C.F.R. § 4.85, Diagnostic Code 6100.

An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86.  In exceptional pattern cases, 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.  As shown in the audiometric results below, however, there is no exceptional pattern of hearing loss in this case. 

Where, as here, impaired hearing is service connected in only one ear, the non-service connected ear is assigned a Roman Numeral I designation in the absence of complete deafness.  38 C.F.R. § 3.385(f).

Throughout the appeal period, the Veteran has indicated he experiences symptoms such as constant drainage, itching, serous discharge, fluid from ear preventing the wearing of hearing aids, embarrassment at smell and sight of drainage, and an inability at his job to hear the bell that warns employees to avoid molten metal.  As noted, however, schedular ratings under Diagnostic Code 6100 are determined by application of the Rating Schedule to the numeric designations assigned based on audiometric test results.

On the October 2009 VA audiological examination, pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
LEFT
40
25
55
95
54

Maryland CNC speech recognition in the left ear was 90 percent.

Using Table VI, the Veteran's October 2009 examination results revealed level II hearing in the left ear and the right ear is considered level I pursuant to 38 C.F.R. § 3.385(f) .  Combining these levels according to Table VII results in a noncompensable rating. 

On the February 2012 VA audiological examination, pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
LEFT
55
30
55
95
59

Maryland CNC speech recognition was 90 percent in the left ear.

Using Table VI, the Veteran's February 2012 examination results revealed level III in the left ear and the right ear is level I pursuant to 38 C.F.R. § 3.385(f).  Combining these levels according to Table VII results in a noncompensable rating.

There are multiple private audiological examination reports in the claims file dated during the appeal period, in particular from the Veteran's employer dated between February 2006 and October 2007.  These examination reports do not contain any speech recognition scores and therefore cannot be used to rate the degree of hearing impairment pursuant to VA regulations.  See 38 C.F.R. § 3.385(a) ("An examination for hearing impairment for VA purposes . . . must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test") (emphasis added).  When the Board concludes that a private audiological report is unclear or insufficient in some way, and it reasonably appears that a request for clarification could provide relevant information that is otherwise not in the record and cannot be obtained in some other way, the Board must either seek clarification from the private examiner or the claimant or clearly and adequately explain why such clarification is unreasonable.  Savage v. Shinseki, 24 Vet. App. 259, 269 (2011).  In this case, unlike in Savage where there were speech recognition scores but it was not clear whether they were Maryland CNC scores, there are no speech discrimination testing results and no indication that any speech discrimination testing was performed.  It therefore does not reasonably appear that a request for clarification would provide relevant information.  The Board will therefore not remand the case for such a request to be made.

The above analysis reflects that application of the tables to the audiometric test results indicates that a schedular rating higher than 10 percent has not been warranted at any point during the appeal period.  In addition, there was no diagnosis during the appeal period of chronic suppurative otitis media, mastoiditis, cholesteatoma, or other diseases warranting separate or higher ratings under 38 C.F.R. § 4.87, applicable to diseases of the ear.  The only diagnoses on the February 2012 VA examination were chronic otitis externa, chronic mastoiditis, absent left malleus, scarring of tympanic membrane, tympanoplasty with mastoidectomy with ossicular chain reconstruction and history of tympanic membrane perforation.  The additional symptoms noted in private and VA treatment records, on the VA examination, and in the Veteran's statements are discussed in the remand section below.

For the foregoing reasons, application of the tables to the audiometric test scores does not warrant a higher schedular rating at any point during the appeal period. The benefit-of-the-doubt doctrine is therefore not for application, and the claim for an increased schedular rating for residuals of a left ear mastoidectomy and tympanoplasty, currently rated as 10 percent disabling, must be denied.  38 U.S.C.A. § 5107(b);38 C.F.R. §§ 3.102, 4.3.


ORDER

Entitlement to an increased schedular rating for residuals of a left ear mastoidectomy and tympanoplasty, with left ear hearing loss, currently rated 10 percent disabling, is denied.


REMAND

Consideration of referral for an extraschedular rating requires a three-step inquiry.  See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  The first question is whether the schedular rating criteria adequately contemplate the Veteran's disability picture.  Thun, 22 Vet. App. at 115.  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.  If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms.  If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted. 

In his written statements and statements to private and VA audiologists, including on the to VA examination reports discussed above, the Veteran has indicated that he experiences many symptoms not listed in the criteria for rating hearing impairment or ear disease.  These symptoms include constant drainage, itching, serous discharge, fluid from ear preventing the wearing of hearing aids, embarrassment at smell and sight of drainage, and an inability at his job to hear the bell that warns employees to avoid molten metal.  The Veteran's symptoms of the Veteran's left ear disability therefore are not contemplated by the applicable rating criteria.  Moreover, the evidence reflects that the symptoms of this disability significantly interfere with his employment.  The Veteran thus met the first and second elements of the Thun inquiry.

As indicated in Thun, the Board may not assign an extraschedular rating in the first instance.  Rather, it must specifically adjudicate whether to refer a case for extraschedular evaluation and, if it so determines, must remand the claim to the RO to refer it to the Under Secretary for Benefits or the Director of Compensation (formerly the Director of Compensation and Pension Service) to determine whether an extraschedular rating is warranted.  See also Barringer v. Peake, 22 Vet. App. 242 (2008).  The Board must therefore remand the claim for an extra-schedular rating for left ear mastoidectomy and tympanoplasty with left ear hearing loss to the RO for such referral.

Accordingly, the claim for an extra-schedular rating for residuals of a left ear mastoidectomy and tympanoplasty with left ear hearing loss is REMANDED for the following action:

1.  Refer the claim for entitlement to an extra-schedular rating for left ear mastoidectomy and tympanoplasty, with left ear hearing loss, to the Under Secretary for Benefits or the Director of Compensation.

2.  After the above development has been completed, readjudicate the claim for entitlement to an extra-schedular rating for residuals of a left ear mastoidectomy and tympanoplasty with left ear hearing loss.  If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).


______________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs