Citation Nr: 1334752	
Decision Date: 10/30/13    Archive Date: 11/06/13

DOCKET NO.  10-22 834A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to an increased evaluation above 10 percent for bilateral hearing loss from May 4, 2009.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Bernard T. DoMinh, Counsel






INTRODUCTION

The Veteran served on active duty from October 1945 to January 1947.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Oakland, California, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, denied the Veteran's claim for an increased evaluation above 10 percent for his service-connected bilateral hearing loss.

In a May 2013 appellate decision, the Board, inter alia, denied the claim for a rating increase above 10 percent for bilateral hearing loss for the period prior to May 4, 2009.  The issue of entitlement to a rating above 10 percent for bilateral hearing loss for the period from May 4, 2009 was remanded to the RO via the Appeals Management Center (AMC) in Washington, D.C., for additional evidentiary development.  Following this development, the matter was adjudicated by the agency of original jurisdiction, which confirmed and continued the 10 percent evaluation assigned for bilateral hearing loss for the period from May 4, 2009.  The claim was returned to the Board in September 2013 and the veteran now continues his appeal.

Please note this appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2012).


FINDINGS OF FACT

The objective audiological evidence demonstrates that for the period from May 4, 2009 to the present, the Veteran's bilateral hearing loss was manifested by no greater than Level IV hearing acuity in the right ear and Level V hearing acuity in the left ear.



CONCLUSION OF LAW

The criteria for an evaluation above 10 percent for bilateral hearing loss were not met at any time during the period from May 4, 2009 to the present.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board notes at the outset that, in accordance with the VCAA, VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

With respect to the issue of entitlement to an increased rating above 10 percent for bilateral hearing loss from May 4, 2009, generally, the notice requirements of a service connection claim have five elements: 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).  VCAA notice must also: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim.  See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements).  38 C.F.R. § 3.159(b) has since been revised and the requirement that VA request that the claimant provide any evidence in his possession that pertains to the claim was removed from the regulation.

The Board observes that following receipt of the Veteran application in February 2009 to reopen his claim for an increased rating for bilateral hearing loss, VCAA notice letters that, collectively, address the applicability of the VCAA to this issue and of VA's obligations to the appellant in developing the claim that satisfied the above-described mandates, as well as the requirements that the claimant be informed of how VA calculates degree of disability and assigns an effective date for the disability, as prescribed in Dingess v. Nicholson, 19 Vet. App. 473 (2006), were dispatched to the Veteran in April 2009 and May 2010.  To the extent that a timing of notice defect with respect to these VCAA notice letters exists, as fully compliant notice was not provided until after the initial adjudication of the claim in the August 2009 RO rating decision now on appeal, as the later notice was followed by a subsequent readjudication in a rating decision/statement of the case, most recently in September 2013, the defective notice error is deemed to be cured.  [See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006): The issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect.]

VA also has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim").  This duty includes assisting the claimant in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant).

VA informed the claimant of its duty to assist in obtaining records and supportive evidence.  In this regard, with respect to the rating claim as it pertains to the state of the Veteran's bilateral hearing from May 4, 2009, the Board observes that all relevant evidence for the period from May 4, 2009 to the present have been obtained and associated with the claims file.  This includes any pertinent records that appear on the VBMS and Virtual VA electronic databases.  VA has provided the Veteran with a VA audiological examination in conjunction with his claim in July 2013.  The clinician who conducted this examination had the Veteran's claims file available for review and his conclusions are predicated on his review of the Veteran's pertinent history.  The examination itself involved objective tests to evaluate and quantify the Veteran's hearing loss that adequately present a picture of the state of his impairment for the period from May 4, 2009.  Furthermore, the impact of the Veteran's hearing loss on his occupational capacity and daily activities was addressed by the examining clinician, pursuant to Martinak v. Nicholson, 21 Vet. App. 447 (2007), and his clinical assessment of the current severity of the claimant's bilateral hearing loss is supported by objective rationales based on the clinician's observations.  Thusly, the Board finds no defect in the aforementioned examination of record and it is deemed to be adequate for purposes of adjudicating that portion of the increased rating claim decided herein.  See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).

The Board further notes that its remand of May 2013 expressly instructed that the appropriate VA clinician review and then present a report that interprets the raw audiometric data appearing on a September 2010 audiology examination in a format that is usable for VA rating purposes.  This action has been carried out in September 2013 and the requested interpretation was associated with the Veteran's claims file.  Therefore, as there has been substantial compliance with the Board's remand instructions, an additional remand for corrective action is not warranted.  [A remand by the Board confers on a veteran or other claimant the right to VA compliance with the remand order and imposes on the Secretary of VA a concomitant duty to ensure compliance with the terms of such an order.  Stegall v. West, 11 Vet. App. 268 (1998).  However, exact compliance with the directives of a Board remand are not necessarily required if the purpose of the remand has been met, such that the RO's post-remand development is in substantial compliance with the Board's remand instructions.  Dyment v. West, 13 Vet. App. 141, 146-47 (1999).]

Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the claimant in the evidentiary development of his claim for an increased rating for bilateral hearing loss from May 4, 2009, decided herein, and thus no additional assistance or notification is required.  The claimant has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The Board will therefore proceed with the adjudication of this portion of the hearing loss issue on appeal.

The Board has thoroughly reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Separate diagnostic codes identify the various disabilities.  Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3 (2013).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2013).  

While the Veteran's entire history is reviewed when assigning a disability evaluation (see 38 C.F.R. § 4.1), where an award of service connection has already been established and only an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  However, the United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.  An evaluation of the level of disability present also includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment.  38 C.F.R. § 4.10 (2013).

Only independent medical evidence may be considered to support medical findings.  The Board is not free to substitute its own judgment for that of such an expert.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).  Although lay persons such as the Veteran are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case (i.e., the objectively quantified severity of his bilateral hearing loss at specific frequencies) falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Consequently, his contentions alone regarding the perceived severity of his hearing loss cannot constitute competent medical evidence for purposes of objectively rating his level of impairment.  38 C.F.R. § 3.159(a)(1) (2013).  The Board notes in this regard that the determination of the level of hearing loss for rating purposes is through audiometric testing using instrumentation that a layperson cannot approximate through his or her sensory perception.
 
The severity of a hearing loss disability is determined by applying the criteria set forth at 38 C.F.R. § 4.85 (2013).  Under these criteria, evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests 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 cycles per second.  To the extent that the Veteran in the present case asserts that his use of electronic hearing aids demonstrates the severity of his hearing loss disability, as the audiometric tests used by VA are conducted without the use of hearing aids, they thusly represent an objective, accurate, and true assessment of the extent of his hearing impairment.  See 38 C.F.R. § 4.85 (2013).

To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness.  38 C.F.R. § 4.85 (2013).  To evaluate an individual's level of disability, Table VI is used to assign a Roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the pure tone threshold average.  38 C.F.R. § 4.85(b) (2012).  Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment for each ear.  38 C.F.R. § 4.85(e) (2013).

If puretone thresholds in each of the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more, an evaluation can be based either on Table VI or Table VIa, whichever results in a higher evaluation.  38 C.F.R. § 4.86(a) (2012).

When the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa, whichever results in the higher numeral, and that numeral will then be elevated to the next higher Roman numeral.  38 C.F.R. § 4.86(b) (2013).

An 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 puretone audiometry test.  38 C.F.R. § 4.85(a) (2013).

The Board notes that for the period from May 4, 2009, VA audiology records show, in pertinent part, that the Veteran received routine clinical evaluation of his ears and inspection and maintenance of his VA-issued electronic hearing aids.  

The report of a September 2010 audiological evaluation (which has been subsequently interpreted by a VA clinician) demonstrates that the Veteran's pure tone thresholds, in decibels, were as follows:
	


HERTZ



1000
2000
3000
4000
RIGHT
35
50
70
70
LEFT
65
60
60
70

The above findings produce a pure tone average of 56.25 decibels for his right ear and 63.75 decibels for his left ear.  Word recognition testing was not performed in conjunction with this audiometric evaluation and so an objective assessment for rating purposes of his level of hearing impairment in his right ear using VA criteria contained in 38 C.F.R. § 4.85 is not possible.  However, as the Veteran's hearing thresholds are all greater than 55 decibels in each of the frequencies 1000, 2000, 3000, and 4000 Hertz in his left ear, he meets the criteria for exceptional patterns in hearing impairment to be afforded consideration under 38 C.F.R. § 4.86(a).  This would result in a designation of Level V for his left ear.

On VA audiological evaluation in July 2013, the Veteran's pure tone thresholds, in decibels, were as follows:
	


HERTZ



1000
2000
3000
4000
RIGHT
40
50
75
80
LEFT
50
60
65
70

Pure tone averages were 61 decibels for his right ear and 61 decibels for his left ear.  Speech audiometry revealed speech recognition ability of 76 percent in the right ear and 76 percent in the left ear.  These audiological findings correspond to a Level IV hearing in the right ear and Level IV hearing in the left ear.  38 C.F.R. § 4.85, Table VI and VIA (2013).  Under Table VII, a designation of Level IV hearing in the right ear and Level IV hearing in the left ear yields a 10 percent evaluation.  38 C.F.R. § 4.85, Diagnostic Code 6100 (2013).  The Veteran's hearing thresholds are not greater than 55 decibels in each of the frequencies 1000, 2000, 3000, and 4000 Hertz in either ear, and so he does not meet the criteria for exceptional patterns in hearing impairment to be afforded consideration under 38 C.F.R. § 4.86(a) based on the objective clinical findings obtained in July 2013.  However, even if the exceptional patterns of hearing impairment of the left ear that were noted on examination in September 2010 (i.e., a designation of Level V for his left ear) were applied to the right ear findings obtained during the July 2013 examination (i.e., a designation of Level IV for his right ear), this would still not provide an avenue for a rating above 10 percent as it produces only a 10 percent evaluation on application of Table VII.  Neither ear demonstrates the required pure tone thresholds for application of 38 C.F.R. § 4.86(b).  The audiological diagnosis was bilateral sensorineural hearing loss.  Per Martinak v. Nicholson, 21 Vet. App. 447 (2007), the examining audiologist noted that the effects of the Veteran's bilateral hearing loss on his occupational capacity and usual daily activities were that he would experience difficulty understanding people in many conversational situations.

The Board in no way discounts the difficulties that the Veteran experiences as a result of his bilateral hearing loss and the inconvenience of having to use hearing aids.  However, the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained.  Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results obtained on VA-authorized clinical examinations.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

The Board finds that the clinical evidence does not demonstrate bilateral hearing loss to level of impairment greater than 10 percent on strict application of the rating schedule at any time for the period from May 4, 2009 to the present.

The Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, the RO must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

Although the Veteran is presently retired, the evidence demonstrates that for the period from May 4, 2009, the effects of the Veteran's bilateral hearing loss on his occupational functioning and daily routine is that he would have difficulty understanding spoken speech in many conversational situations.  While it is conceded that this finding demonstrates that his hearing loss disability imposes a degree of interference with his occupational functioning, there is no objective evidence in the present case that demonstrates that the Veteran's hearing loss has actually resulted in a marked level of interference with his capacity for employment.  As such, the Board cannot concede that the Veteran's hearing loss alone causes marked interference with his capacity for employment.  The level of impairment objectively demonstrated is contemplated by the rating criteria for a 10 percent evaluation.  The Board thus finds no reason to refer the case to the Compensation and Pension Service for consideration of an extra-schedular evaluation under 38 C.F.R. § 3.321(b) (2013).  That is, there is no evidence of exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, to suggest that the Veteran's bilateral hearing loss disability is not adequately addressed by the regular rating schedule.  Although the Veteran may have difficulty hearing spoken conversations because of his impaired hearing, the evidence does not reflect that his service-connected hearing loss affects his daily life in a markedly unusual or exceptional way.  Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  VAOPGCPREC 6-96.  See also, Bagwell v. Brown, 9 Vet. App. 237, 238-39 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). 

In reaching this conclusion, 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.  See 38 U.S.C.A § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  His claim for an evaluation in excess of 10 percent for the period from May 4, 2009 for bilateral hearing loss is therefore denied.


ORDER

An increased evaluation above 10 percent for bilateral hearing loss for the period from May 4, 2009 is denied.



____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs