Citation Nr: 1334868 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 13-11 885 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to a compensable rating for sensorineural hearing loss right ear. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran served in active duty from April 1975 to September 1977. This appeal comes to the Board of Veterans' Appeals (Board) from a June 2010 rating decision of the Manchester, New Hampshire Regional Office (RO). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents reveals an April 2012 VA audiological examination and VA medical records from July and October 2012. All other documents in the Virtual VA file are either duplicative of the evidence in the claims file or irrelevant to the issue of appeal. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein have been accomplished. 2. The Veteran's right ear hearing loss is not manifested by worse than a Level II hearing loss. CONCLUSION OF LAW The criteria for a compensable rating for a right ear hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.85, 4.86, Diagnostic Code 6100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Because service connection, an initial rating, and an effective date have been assigned, the notice requirements of the Veterans Claims Assistance Act (VCAA), 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Consequently, discussion of VA's compliance with VCAA notice requirements as they relate to the increased rating claim would serve no useful purpose. 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). Legal Principles Disability evaluations are determined by the application of a schedule of ratings, which are based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes identify the various disabilities. The governing regulations provide that the higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Where an increase in the disability is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). "Staged ratings," or separate ratings for separate periods, are appropriate for an increased rating claim whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Once disability is established, levels of hearing loss are determined by considering the average puretone threshold and speech discrimination percentage scores. 38 C.F.R. § 4.85(b); Lendenmann v. Principi, 3 Vet. App. 345 (1992) (assignment of ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned). To evaluate the degree of disability from defective hearing, the revised rating schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. The provisions of 38 C.F.R. § 4.86 address exceptional patterns of hearing loss. Exceptional patterns of hearing loss are present when the puretone threshold at 1000, 2000, 3000 and 4000 hertz (Hz) is 55 decibels or more, or when the puretone threshold is 30 decibels (dB) or less at 1000 Hz, and 70 dB or more at 2000 Hz. The Veteran is only service connection for only one ear. As such, VA regulations require that the non-service-connected ear be rated at Roman Numeral Level I. See 38 C.F.R. §§ 3.383, 4.85(f). Analysis The Veteran's hearing loss is currently noncompensable under 38 C.F.R. § 4.85, Diagnostic Code 6100. In the April 2010 claim for an increased rating, the Veteran reported that his right ear hearing loss had been progressively getting worse and was worsening faster than the left ear. In a June 2010 VA audiological examination, the Veteran complained that he had difficulty understanding other people and that he would misinterpret people especially when they spoke on his right side. Objective testing revealed the following: Puretone Threshold 500 1000 2000 3000 4000 Right 10 10 25 70 60 Puretone Threshold Average Right 41.25 Maryland CNC Speech Discrimination Right 84 The right ear puretone threshold average was 41.25. Maryland CNC testing revealed speech recognition was 84 percent in the right ear. The examiner diagnosed the Veteran with a severe hearing loss at 3000 Hz, and a moderately severe hearing loss at 4000 Hz and 6000 Hz, and mild hearing loss at 8000 Hz. In a March 2011 private audiological evaluation by "Dr. V.N.," the Veteran again complained of hearing loss and noted that he believed it had worsened with time. Dr. V.N. diagnosed the Veteran with high frequency sensorineural hearing loss. Objective testing revealed the following: Puretone Threshold 250 500 1000 2000 4000 8000 Right 15 10 10 10 65 55 Speech recognition study revealed a 96 percent speech recognition threshold. In a January 2012 statement, the Veteran's representative argued that the Veteran was entitled to a compensable rating based on the March 2011 examination by Dr. V.N. The Veteran was provided with another VA audiological examination in April 2012. Objective testing revealed the following: Puretone Threshold 250 500 1000 1500 2000 3000 4000 6000 Right 20 15 25 35 65 70 60 55 Puretone Threshold Average Right 55 Maryland CNC Speech Discrimination Right 88 The right ear puretone threshold average was 55. Maryland CNC testing revealed speech recognition was 88 percent. The examiner noted that the Veteran's hearing loss "has not changed significantly since last examination." In a VA medical record dated July 2012, the Veteran stated to a VA psychologist that he believed that his hearing problems may have caused his business to lose a number of contracts because he completed many jobs incorrectly. In another July 2012 VA medical record, the Veteran was fitted for a hearing aid and noted that he was surprised at how well he was hearing soft conversational speech. In a statement dated June 2013, the representative argued that the Veteran should be afforded another audiological examination "due to the length of time this case will remain at [the Board] until it is reviewed and addressed. In an August 2013 informal hearing presentation, the representative argued that the Veteran was "adamant" that his hearing loss was severe enough to warrant a higher rating. At the outset, the Veteran is not entitled to another VA examination. In the June 2013 statement, the Veteran's representative requested another audiological examination. In an increased rating claim, if the veteran alleges worsening since the last examination, the claim must be remanded for a new examination. Olson v. Principi, 3 Vet. App. 480, 482 (1992); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Here, however, the Veteran has not alleged that his hearing loss has worsened. Indeed, the April 2012 VA examiner noted that the Veteran's hearing loss "has not changed significantly since last examination." Moreover, there are three audiological examinations of record within about the last three years. The Board therefore finds that the April 2012 VA examination is sufficiently recent and a new VA examination is not warranted. Returning to the issue of an increased rating, the Board finds that a compensable disability rating for sensorineural hearing loss right ear is not warranted. Although both Dr. V.N. and the June 2010 VA examiner diagnosed the Veteran with hearing loss, objective audiometric findings-rather than diagnoses alone-are determinative of the disability rating. Lendenmann, 3 Vet. App. 345. The Board therefore relies primarily on the objective findings in the April 2012 VA examination as they are the most recent and because the examination conformed with the requirements of 38 C.F.R. § 4.85(a) and 38 C.F.R. § 4.85(d). Here, objective audiometric test results do not warrant a compensable disability rating. 38 C.F.R. § 3.385; 38 C.F.R. § 4.85(b). Based on findings from the April 2012 VA examination, the Veteran's average puretone threshold of 55 decibels and Maryland CNC speech discrimination score of 88 result in a Roman numeral designation of II under Table VI. 38 C.F.R. § 4.85. Service connection is not in effect for the left ear. Pursuant to 38 C.F.R. § 4.85(f), if impaired hearing is service-connected in only one ear, to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman numeral designation of I, subject to the provisions of 38 C.F.R. § 3.383. Here, 38 C.F.R. § 3.383 is inapplicable because the Veteran is not service-connected at a compensable level for any ear. Therefore, applying the highest value for the right ear to the nonservice-connected left ear under Table VII, the Board finds that the Veteran's hearing loss was correctly evaluated as noncompensable in the June 2010 rating decision. As analyzed above, the April 2012 results are most relevant for current rating purposes, but even if the other audiological examinations were applied, they would not result in a higher rating. The March 2011 examination by Dr. V.N. did not include testing at 3000 Hz and therefore is not valid under 38 C.F.R. § 4.85(d). Regardless, the average of 1000 Hz, 2000 Hz and 4000 Hz is 28.3, well below the average in the April 2012 VA examination. Moreover, although it is not clear whether Dr. V.N. used a Maryland CNC test speech discrimination test as required under 38 C.F.R. § 4.85(a), even assuming that he did, the Veteran's right ear speech discrimination score was 96 percent, significantly above the April 2012 test. Combining the 96 percent speech discrimination score with the 28.3 average puretone threshold results in a Roman numeral designation of I under Table VI. Under Table VII, this would result in a noncompensable rating. 38 C.F.R. § 4.85. The June 2010 VA audiological examination findings are also of little help to the Veteran. There the puretone threshold average was 41.25 and the Maryland CNC speech discrimination score was 84. Under Table VI, this combination would result in a Roman numeral designation of II. Under Table VII, this would also result in a noncompensable rating. 38 C.F.R. § 4.85. The evidence does not show an exceptional level of impaired hearing in the right ear such that 38 C.F.R. § 4.86 is applicable. In the April 2012 VA examination, only two of the pertinent thresholds exceeded 55 decibels, at the March 2011 private examination, only one threshold exceeded 55 decibels; and in the June 2010 VA examination, only two thresholds exceeded 55 decibels. 38 C.F.R. § 4.86(a). None of the examinations show a puretone threshold less than 30 decibels at 1000 Hertz and over 70 decibels at 2000 Hertz. 38 C.F.R. § 4.86(b). The Board finds that no higher evaluation can be assigned pursuant to any other potentially applicable Diagnostic Code. Because there are specific Diagnostic Codes to evaluate hearing loss, consideration of other Diagnostic Codes for evaluating the disability is not appropriate. 38 C.F.R. § 4.20 (permitting evaluation, by analogy, where the rating schedule does not provide a specific Diagnostic Code to rate the disability). See Butts v. Brown, 5 Vet. App. 532 (1993). Accordingly, the Board finds that the preponderance of the evidence is against a compensable disability rating for right ear hearing loss. 38 C.F.R. §§ 4.85, 4.86. Extraschedular Consideration The Board has considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extraschedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available scheduler evaluations for that service-connected disability with the established criteria found in the rating schedule for that disability. 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 adequate and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"); Thun, 22 Vet. App. 111. In Martinak, 21 Vet. App. at 455, the Court held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. The April 2012 VA examiner only noted that the Veteran reported some change in his audiologic history. However, the record provides additional insight into how his hearing loss affects him. In the June 2010 VA examination, the Veteran reported that his chief complaint was that he has difficulty understanding what people are saying and he misinterprets what people are saying, especially when people speak on his right side. In the March 2011 private examination, Dr. V.N. recommended communication strategies including minimizing background noises and always facing the other person when speaking with them. He also recommended that the Veteran try using hearing aids, since newer technology hearing aids can selectively amplify the higher frequencies. The Veteran later obtained hearing aids from VA and in a July 2012 VA medical record, the appellant noted that he was surprised at how well he was hearing soft conversational speech. Therefore, although the April 2012 VA examiner did not fully describe the functional effects as required under Martinak, the Board finds that no prejudice results to the Veteran because the functional effects of his hearing loss are adequately addressed by the remainder of the record and are sufficient for the Board to consider whether referral for an extra-schedular rating is warranted. In this case the evidence does not indicate an exceptional disability picture regarding the Veteran's hearing loss that would render the schedular criteria inadequate. The Veteran's main symptoms appear to be difficulty hearing which is specifically contemplated in the diagnostic criteria. Therefore, the Board concludes that the assigned scheduler evaluation reasonably describes the Veteran's hearing loss. Accordingly, referral for consideration of an extraschedular rating is not warranted. The Board has also considered whether the issue of entitlement to a total disability rating based on individual unemployability has been reasonably raised by the record. Although in a July 2012 VA medical record, the Veteran stated that he believed that his hearing problems may have caused his business to lose a number of contracts, he did not allege that his hearing problems prevented him from working. Moreover, in an October 2012 VA medical record, the Veteran's primary care physician noted that the appellant said that he was working as a property manager and that, although he was "still under some stress," work was "OK." Therefore, the Board finds that the issue of entitlement to benefits based on individual unemployability has not been reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In deciding the Veteran's increased rating claim, the Board has considered whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. Francisco, 7 Vet. App. at 58; Hart, 21 Vet. App. 505. The Board does not find evidence that the Veteran's service-connected hearing loss should be increased for any other separate period based on the facts found during the whole appeal period. ORDER Entitlement to a compensable rating for a right ear sensorineural hearing loss is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs