Citation Nr: 1334698 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 07-21 812 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE 1. Entitlement to a compensable evaluation prior to May 16, 2006 for bilateral hearing loss. 2. Entitlement to an evaluation in excess of 10 percent from May 16, 2006 through July 31, 2008 for bilateral hearing loss. 3. Entitlement to a compensable evaluation from August 1, 2008 for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) from October 2006 and May 2008 rating decisions by the above Department of Veterans Affairs (VA) Regional Office (RO). In the October 2006 rating decision, the RO increased the Veteran's evaluation for right ear hearing loss to 10 percent, effective May 16, 2006. A June 2007 rating decision proposed to reduce the evaluation to 0 percent (noncompensable) on the basis that the prior increase had been erroneous in considering the Veteran to have service-connected bilateral hearing loss (only the right ear was service connected at that time). The May 2008 rating decision decreased the Veteran's evaluation for right ear hearing loss to the noncompensable level, effective August 1, 2008. An April 2013 rating decision granted service connection for bilateral hearing loss effective March 25, 2004. The Veteran testified before a Veterans Law Judge who is no longer employed at the Board at a videoconference hearing in February 2010. A transcript is of record. The claim was then before the Board in April 2010, at which time the Board remanded it for additional development. In November 2012 the claim was again remanded because the Veteran requested a new hearing. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in January 2013. A transcript is of record. The claim was again before the Board in March 2013, at which time the Board remanded it for additional development. The requested development has been completed, and the claim is properly before the Board for appellate consideration. FINDINGS OF FACT 1. Prior to May 16, 2006, audiometric test results show that the Veteran, at worst, had level I hearing in her right ear and level I hearing in her left ear. 2. From May 16, 2006 through October 1, 2009, audiometric test results show that the Veteran, at worst, had level V hearing in her right ear and level III hearing in her left ear. 3. From October 2, 2009, audiometric test results show that the Veteran, at worst, had level I hearing in her right ear and level I hearing in her left ear. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for bilateral hearing loss prior to May 16, 2006 have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.385, 4.85, 4.86, Diagnostic Code 6100 (2013). 2. The criteria for an evaluation in excess of 10 percent for bilateral hearing loss from May 16, 2006 through July 31, 2008 have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.385, 4.85, 4.86, Diagnostic Code 6100 (2013). 3. The criteria for an evaluation of 10 percent for bilateral hearing loss from August 1, 2008 through October 1, 2009 have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.385, 4.85, 4.86, Diagnostic Code 6100 (2013). 4. The criteria for a compensable evaluation for bilateral hearing loss from October 2, 2009 have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.385, 4.85, 4.86, Diagnostic Code 6100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This 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). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this 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. Id. at 486. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in June 2006 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of her and VA's respective duties for obtaining evidence. The Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, in the June letter, the RO provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. Additional notice was provided in an August 2009 letter. Next, VA has a duty to assist a Veteran in the development of the claim. This duty includes assisting her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). 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 service treatment records and private treatment records. The Veteran had a VA examination in May 2013. The examiner determined that the audiology test results were not valid due to a lack of effort by the Veteran. Since the Veteran was not cooperative, the Board finds that the duty to assist was fulfilled in regards to the examination even though were not usable results from the testing. Furthermore, the Veteran was provided with previous examinations, the results of which are adequate for the purposes of deciding the claim on appeal. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran was afforded hearing before a Decision Review Officer (DRO) in May 2009 and VLJs in February 2010 and January 2013 in which she presented oral argument in support of her claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the DRO or VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. At the hearings, the DRO and VLJs noted that bases of the prior determinations and noted the elements of the claims that were lacking to substantiate the claim for an increased evaluation. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the Board. By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claim. As such, the Board finds that, consistent with Bryant, the DRO and VLJs complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. II. Higher Ratings The Veteran seeks a compensable evaluation for bilateral hearing loss hearing loss prior to May 16, 2006, an evaluation greater than 10 percent for bilateral hearing loss from May 16, 2006 to July 31, 2008, and a compensable evaluation for bilateral hearing loss from August 1, 2008. Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4 (2013). The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155 (2002). The disability must be viewed in relation to its history. 38 C.F.R. § 4.1 (2013). A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7 (2013). Where the appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Thus, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased ratings and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In cases for which the evaluation of hearing loss is at issue, an examination 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. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a) (2013). In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). VA must also consider whether an extraschedular evaluation under 38 C.F.R. § 3.321(b) should be assigned in the case where the disability affect on the Veteran's occupational function and daily activities. Id. at 454-55. Hearing loss ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with average hearing thresholds determined by puretone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 cycles per second. "Puretone threshold average" is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz divided by four. This average is used in all cases (including those in §4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85, DC 6100. The rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. 38 C.F.R. § 4.85. The horizontal rows in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect. See 38 C.F.R. §§ 4.85, 4.87. The regulations also provide that in cases of exceptional hearing loss, i.e. when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, the Roman numeral designation will be determined for hearing impairment, separately, from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86. A Roman numeral designation will also be determined from either Table VI or Table VIa, whichever results in the higher numeral, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. That numeral will then be elevated to the next higher Roman numeral. At February 2004 treatment from a Naval hospital the Veteran reported chronic problems with both ears, with the right being worse. The assessment was hearing loss and prior tympanoplasty bilaterally and mild eustachian tube dysfunction. The Veteran had a VA examination in August 2004. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 40 40 30 35 LEFT 25 25 30 20 20 Pure tone threshold levels averaged 36.25 decibels for the right ear and 23.75 decibels for the left ear, and speech discrimination testing was 96 percent bilaterally. These results correspond to Level I hearing in both ears pursuant to Table VI. The results correspond to a 0 percent evaluation pursuant to Table VII. A pattern of exceptional hearing loss under 38 C.F.R. § 4.86 was not demonstrated. December 2005 private family practice treatment records indicate that the Veteran had conductive hearing loss and eustachian tube dysfunction. May 2006 treatment records indicate that she also had sensorineural hearing loss. The Veteran had an audiogram at September 2005 private treatment. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 50 50 n/a 40 LEFT 25 25 40 25 25 The results of this audiometric testing cannot be used to rate the Veteran because of the lack of a reading for the right ear at 3000 Hz. In June 2006 the Veteran underwent an examination arranged through VA QTC Services, which revealed that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 55 55 55 55 LEFT 20 30 40 35 25 Pure tone threshold levels averaged 55 decibels for the right ear and 35 decibels for her left ear. Speech discrimination testing was 68 percent in the right ear and 76 percent in the left ear. These results correspond to Level V hearing on the right and Level III hearing on the left pursuant to Table VI. An exceptional pattern of hearing loss was shown under 38 C.F.R. § 4.86(a). However, Table VIA results in Level III hearing in the right ear, and therefore Table VI will still be used because it results in the higher level. See 38 C.F.R. § 4.86(a). These results correspond to a 10 percent evaluation pursuant to Table VII. The examiner diagnosed the Veteran with mild sensorineural hearing loss in the left ear. She recommended that the Veteran have a hearing aid evaluation and fitting for both ears upon medical clearance. The Veteran wrote in her November 2006 Notice of Disagreement that her hearing loss affected almost every aspect of her life, including her job performance. She constantly had to ask her coworkers to repeat themselves and her supervisor sometimes resorted to writing out instructions. The Veteran wrote in a January 2007 statement that her hearing loss had adversely affected her career. The Veteran had another VA examination on October 2, 2009. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 50 50 50 55 LEFT 35 35 40 30 35 Pure tone threshold levels averaged 51.25 decibels for the right ear and 35 decibels for her left ear. Speech discrimination testing was 84 percent bilaterally. These results correspond to Level I hearing on the right and Level I hearing on the left pursuant to Table VI, and further correspond to a 0 percent evaluation pursuant to Table VII. A pattern of exceptional hearing loss under 38 C.F.R. § 4.86 was not demonstrated. The Veteran was diagnosed with bilateral hearing loss, and it was noted that she had subjective difficulty in most listening environments, with communication, and a decrease in hearing acuity bilaterally. The examiner noted that the Veteran had mild mixed hearing loss in the left ear. It was also noted that the Veteran had difficulty with communication in her usual occupation and daily activities. The Veteran testified at the February 2010 Board hearing that she felt that she had been negatively impacted at work due to her hearing loss. She wrote in an August 2011 statement that she committed grammatical errors because of hearing loss. Furthermore, she felt she had not been promoted at her job as a medical support assistant because of her hearing loss. The Veteran testified at the January 2013 hearing that she is not supposed to take verbal orders in her work as a medical clerk due to her hearing loss and that it had affected where she could be assigned. The Veteran had a VA examination in May 2013. The examiner felt that the audiology test results were not accurate because of the dramatic decrease since the last evaluation in 2009. The results were also inconsistent when the Veteran was retested. The examiner also noted that the tonal quality of the Veteran's voice was too clear and unaffected for someone who could not hear her own voice, as would be true with the degree of hearing loss from the testing. The Veteran did not have what is known as "deaf speech." The speech discrimination scores of 0 percent for the right ear and 4 percent for the left ear were also not considered valid. The examiner noted that the responses were often words that rhymed with the word presented, which was a common technique used by people who want to falsely give the appearance of trying. Furthermore, even if the hearing thresholds from testing were accurate, it was unlikely that the speech discrimination scores would be so low. Speech discrimination was not attempted at a higher level because it could have caused damage to the Veteran's hearing. In any event, due to her failure to cooperate, the findings cannot be used to support a higher rating. As discussed above, in Martinak, the Court noted that VA had revised its hearing examination worksheets to include 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 (2013). The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. In this case, both the October 2009 examination report, statement from the Veteran and hearing testimony contain a detailed description of the Veteran's subjective complaints, functional effects, and occupational effects. Thus, the Board finds that the examinations were adequate. In evaluating the Veteran's claim for a compensable rating for right ear hearing loss prior to May 16, 2006 and to an evaluation in excess of 10 percent for bilateral hearing loss from May 16, 2006 to July 31, 2008, the Board finds that the medical evidence does not support the assignment of high ratings. The Board finds that the Veteran is entitled to an increased evaluation of 10 percent from August 1, 2008 through October 1, 2009 for bilateral hearing loss based on the July 2006 examination. As discussed above, the examination from October 2, 2009 showed a noncompensable degree of hearing loss. Therefore, the Veteran does not qualify for a compensable evaluation from that date. To the extent that the Veteran's hearing is impaired, as she has asserted, the fact that her hearing acuity is less than optimal does not by itself establish entitlement to a higher disability ratings. To the contrary, under the Rating Schedule a higher rating can be awarded only when loss of hearing has reached a specified measurable level. Thus, the preponderance of the evidence is against entitlement to higher evaluations prior to July 31, 2008 and from October 2, 2009. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111(2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Although the Veteran has described difficulties at work due to hearing loss, the record indicates she has been able to continue working. Here, the applicable rating criteria adequately contemplate the manifestations of the Veteran's bilateral hearing loss, which include difficulty hearing. The rating criteria are therefore adequate to evaluate the bilateral hearing loss, and referral for consideration of an extraschedular rating is not warranted. Finally, the Court has held that a total disability rating based on individual unemployability (TDIU) is a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Veteran has not submitted evidence of unemployability due to her bilateral hearing loss, and her representative stated at the January 2013 hearing that she was not seeking unemployability because she was still working. Thus, TDIU is not raised by the record. ORDER A compensable evaluation for bilateral hearing loss prior to May 16, 2006 is denied. An evaluation in excess of 10 percent for bilateral hearing loss from May 16, 2006 through July 31, 2008 is denied. An evaluation of 10 percent, and no higher, for bilateral hearing loss from August 1, 2008 through October 1, 2009 is granted. A compensable evaluation for bilateral hearing loss from October 2, 2009 is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs