Citation Nr: 1334965 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 12-35 251 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a compensable disability rating for bilateral hearing loss disability prior to July 20, 2013. 2. Entitlement to a disability rating in excess of 10 percent for bilateral hearing loss disability from July 20, 2013. WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran had active military service from November 1953 to November 1955. This matter comes before the Board of Veterans' Appeals (Board) from an April 2011 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Winston-Salem, North Carolina. In February 2013, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This case was previously before the Board in March 2013 and June 2013 and was remanded for additional development. For the reasons discussed below, the Board finds that there has been substantial compliance with its March 2013 and June 2013 remands. See Stegall v. West, 11 Vet. App. 268 (1998). In an August 2013 rating decision, the RO increased the rating for service-connected bilateral hearing loss to 10 percent, effective July 20, 2013. As such, the issues on appeal have been recharacterized as listed on the title page of this decision. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). 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 July 20, 2013, the Veteran's bilateral hearing loss disability was manifested by Level II hearing acuity in the right ear and Level III hearing acuity in the left ear. 2. From July 20, 2013, the Veteran's bilateral hearing loss disability has been manifested by Level IV hearing acuity in both ears. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for bilateral hearing loss disability, prior to July 20, 2013, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012). 2. The criteria for a disability rating in excess of 10 percent for bilateral hearing loss disability, from July 20, 2013, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claims. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). VA correspondence dated in January 2011 advised the Veteran of the necessary elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Specifically, the Veteran was informed of what evidence was required to substantiate the claim for an increased rating, of his and VA's respective duties for obtaining evidence. It also notified him that a disability rating and effective date would be assigned, in the event of award of the benefit sought, as required by the Court in Dingess/Hartman. The January 2011 VA notice was provided prior to the April 2011 initial adjudication, in compliance with Pelegrini. The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, including the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The Board concludes that VA's duty to assist has also been satisfied. The Veteran's service treatment records are determined to be not available in this case. To that effect, the National Personnel Records Center notified the RO that the Veteran's service treatment records are fire-related. In October 2009, the RO requested that the Veteran complete and submit a NA Form 13055, but later in the same month, the Veteran returned the form blank indicating that no other records are available. As such, the RO made a formal finding in October 2009 that the Veteran's service treatment records are unavailable for review. The Veteran's post service medical records are in the file. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In compliance with the Board's March 2013 and June 2013 remands, in correspondence dated in March 2013 and June 2013, the RO requested that the Veteran complete and return enclosed VA Form 21-4142, Authorization and Consent to Release Information, for each health care provider who provided treatment for the Veteran's bilateral hearing loss disability. To this date, the Veteran submitted a completed release for Dr. Britt only, which referenced only one office visit, in January 2013 for audiometric testing, the report of which was provided. Additionally, VA outpatient treatments records dated from January 2011 to March 2013 were obtained and associated with the claims file. The RO also provided the Veteran appropriate VA audiology examinations in April 2011 and July 2013. Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran). The Veteran was initially provided a VA audiology examination in April 2011. Subsequently, the Veteran and his wife testified at the February 2013 Board hearing that his hearing had significantly worsened in the previous six months. Thus, the Board, in its March 2013 remand, ordered an updated VA examination, which was obtained in May 2013. However, the May 2013 VA examination stated that the hearing test results were not valid for rating purposes because the test results were considered inconsistent and indicative of non-organic hearing loss. Accordingly, to accurately assess the Veteran's current level of hearing loss disability, in its June 2013 remand, the Board requested yet another VA examination, which was obtained in July 2013. The Board finds that the April 2011 and July 2013 VA examinations were adequate to decide the claim on appeal because the reports provided sufficient detail to determine the current severity of the Veteran's bilateral hearing loss. The VA audiologists fully described the effects of the Veteran's hearing disability on his occupational functioning and daily activities. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). Although the April 2011 VA examiner stated that the Veteran's claims file was not available for review, the Board finds that this does not constitute a prejudicial error. Here, an increase in the disability rating is at issue, and while the history of the disability is for consideration in rating the disability, the present level of the Veteran's service-connected disability is of primary concern. 38 C.F.R. § 4.1 (2012); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). As a disability rating for hearing loss is assigned based on a mechanical application of audiometric test findings, and speech discrimination ability, to the criteria set forth in 38 C.F.R. § 4.85, review of the claims file would not have changed the objective and dispositive findings made during the VA examination. See Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997). Thus, further examination is not necessary regarding the issues on appeal. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Under these circumstances, the Board finds the RO substantially complied with the Board's March 2013 and June 2013 remand directives. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Finally, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court recently held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Veterans Law Judge (VLJ) who conducts 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. Here, during the Board videoconference hearing, the VLJ noted the elements of the claim that were lacking to substantiate the claim for increased rating. The VLJ solicited information as to any pertinent potentially available outstanding evidence. The VLJ asked questions to draw out the current state of the Veteran's bilateral hearing loss disability. On remand, VA examinations were conducted and additional private and VA medical records were obtained; otherwise, no pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran that has yet to be obtained. Thus, the submission of overlooked evidence was not only suggested, but obtained. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for increased rating. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Law and Analysis Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012). Evaluation of a service-connected disability requires a review of a veteran's medical history with regard to that disorder. However, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. While the entire recorded history of a disability is important for more accurate evaluations, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The severity of a hearing loss disability is determined by comparisons of audiometric test results with specific criteria set forth at 38 C.F.R. § 4.85. Evaluations of bilateral defective hearing 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 of 1,000, 2,000, 3,000, and 4,000 Hertz (cycles per second). The Rating Schedule allows for such audiometric test results to be translated into a numeric designation ranging from Level I to Level XI in order to evaluate the degree of disability from bilateral service-connected defective hearing. An examination for hearing impairment 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 must be conducted without the use of hearing aids. 38 C.F.R. § 4.85. In November 2010, the Veteran filed a claim for an increased rating for his service-connected bilateral hearing loss stating that the condition had continued to worsen. In a February 2011 written statement, the Veteran's wife indicated that she noticed that the Veteran's hearing had greatly diminished since his last hearing test. She related that it was increasingly hard for him to hear her when speaking to him and most of the time she must repeat what she said to him in a louder voice for him to hear. The Veteran was provided a VA examination in April 2011. On audiological evaluation, pertinent pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 50 50 50 50 LEFT 45 65 65 65 The speech recognition scores, using Maryland CNC word list, were 90 percent in the right ear and 86 percent in the left ear. The diagnosis was sensorineural hearing loss, bilaterally. The examiner noted that the Veteran's bilateral hearing loss disability had significant effects on occupational activities because of hearing difficulty. See Martinak, 21 Vet. App. at 455. In his July 2011 notice of disagreement, the Veteran stated that his hearing had diminished greatly in the past year. He described that "[my wife] can be sitting beside of me and I cannot hear or understand what she is saying. She will have to get my attention and repeat her conversation to me. I always have to turn toward my wife when she is talking to me. Otherwise, I do not hear her." On January 2013 private audiological evaluation, pertinent pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 45 60 70 65 LEFT 50 60 60 80 Speech discrimination scores were 82 percent in the right ear and 88 percent in the left ear. A hand-written notation from the private audiologist reflects "fair" reliability in the testing results, noting that the Veteran was "hesitant to respond to speech or puretone" testing, and had several false positive and negative responses. At his February 2013 hearing before the Board, the Veteran testified that he had been seen by Dr. Britt for a hearing test in January 2013 when he was told that his hearing had gotten progressively worse since the last time he was seen by Dr. Britt two years previously. He was recommended to use hearing aids. The Veteran stated that even when in the same room, he could not understand what his wife was saying and that he was unable to hear the television unless the volume was absolutely high. The Veteran's wife also testified at the Board hearing that the Veteran had a hard time hearing people in the same room even when they are speaking in their natural voice. She noticed that there had been a big difference in the Veteran's hearing in the previous six months and believed that there had been a significant hearing loss. She further stated that the Veteran had to look at her face to hear her and that he was "stone deaf" in his left ear. The Veteran was afforded another VA audiology examination in May 2013. However, the VA examiner stated that the test results were not valid for rating purposes. The examiner noted that the behavioral test results did not match up with the objective test measures, and after reinstruction, some puretone results improved significantly. The examiner concluded that the entirety of the test results were considered inconsistent and indicative of non-organic hearing loss. Most recently, the Veteran was provided a VA audiology examination on July 20, 2013. The VA examiner indicated that the Veteran's claims file was reviewed. On audiological evaluation, pertinent pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 45 50 60 65 LEFT 50 65 75 75 Speech discrimination scores, using Maryland CNC word list, were 80 percent in the right ear and 82 percent in the left ear. The examiner stated that the test results were valid for rating purposes and that the use of speech discrimination scores was appropriate for the Veteran. The diagnosis was bilateral sensorineural hearing loss. As to the functional impact of the hearing loss, the examiner noted that the Veteran's hearing loss impacted his ordinary conditions of daily life, including ability to work, due to difficulty hearing in group situations, hearing certain voices, and hearing from the side. See Martinak, 21 Vet. App. at 455. The April 2011 VA audiological examination revealed a right ear puretone threshold average of 50 decibels, at 1000, 2000, 3000, and 4000 Hertz, and a left ear puretone threshold average of 60 decibels, at 1000, 2000, 3000, and 4000 Hertz, and right ear speech discrimination ability of 90 percent and left ear speech discrimination ability of 86 percent, using the Maryland CNC word list. The report of private audiometric findings in January 2013 reflects a right ear puretone threshold average, at 1000, 2000, 3000, and 4000 Hertz of 60 decibels, and a left ear puretone threshold average, at 1000, 2000, 3000, and 4000 Hertz of 62.5 decibels. However, there was no indication that the speech discrimination percentage for both ears was obtained by utilizing the Maryland CNC word list. Further, the report reflects only "fair" reliability in the testing results with a notation that the Veteran was "hesitant to respond to speech or puretone" testing. As such, those findings are not useful for rating purposes. The July 2013 VA audiological examination revealed a right ear puretone threshold average of 55 decibels, at 1000, 2000, 3000, and 4000 Hertz, and a left ear puretone threshold average of 66 decibels, at 1000, 2000, 3000, and 4000 Hertz, and right ear speech discrimination ability of 80 percent and left ear speech discrimination ability of 82 percent, using the Maryland CNC word list. Applying the clinical findings from the April 2011 audiological evaluation to the rating criteria results in Level II hearing acuity in the right ear and Level III hearing acuity in the left ear. See 38 C.F.R. § 4.85, Table VI. Applying these numeral designations to Table VII results in a noncompensable disability rating for bilateral ear hearing loss disability. 38 C.F.R. §§ 3.383, 4.85 (2012). Thus, a compensable disability rating, prior to July 20, 2013, is not supported by the evidence of record. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Applying the clinical findings from the July 20, 2013 audiological evaluation to the rating criteria results in Level IV hearing acuity in each ear. See 38 C.F.R. § 4.85, Table VI. Applying these numeral designations to Table VII results in a 10 percent disability rating for bilateral ear hearing loss disability. 38 C.F.R. §§ 3.383, 4.85 (2012). Thus, a disability rating in excess of 10 percent, from July 20, 2013, is not supported by the evidence of record. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). When the pure tone decibel loss values are 55 or greater at 1000 Hertz, 2000 Hertz, 3000 Hertz, and 4000 Hertz in either ear, or 30 or less at 1000 Hertz and 70 or more at 2000 Hertz, the criteria for exceptional patterns of hearing impairment must be considered. 38 C.F.R. § 4.86(a) and (b) (2012). However, none of the examination results dated during the entire appeal period reflect an exceptional pattern of hearing impairment in either ear; as such, the criteria in 38 C.F.R. § 4.86(a) or (b) do not apply. Generally, evaluating a disability using either the corresponding or an analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2012). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, the Rating Schedule contemplates then the Veteran's disability picture, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the currently assigned disability ratings inadequate. The Veteran's service-connected bilateral ear hearing loss is evaluated as an impairment of auditory acuity pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by his disability. Id. When applying the results of the relevant audiological examinations to the tables set forth in the regulations, the Veteran's service-connected bilateral ear hearing loss disability was assigned numeric designations of Level II for the right ear and Level III for the left ear on the April 2011 VA audiology examination; and Level IV for both ears on the July 2013 VA audiology examination. The Veteran reported impaired ability to communicate or hear others. He reported that he had to face the person speaking in order to understand speech and that he had to turn up the television volume to an absolutely high level. The VA examiners found that the Veteran's hearing loss impacted his ordinary conditions of daily life, including his ability to work, due to difficulty hearing in group situations, hearing certain voices, and hearing from the side. However, when comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability picture represented by the currently assigned ratings. Ratings in excess of those currently assigned are provided for certain manifestations of bilateral hearing loss, but the evidence demonstrated that those manifestations were not present for any distinct period during the rating periods on appeal. The criteria for the currently assigned disability ratings reasonably describe the Veteran's disability level and symptomatology. Consequently, the Board concludes that the schedular evaluation is adequate and that referral of the Veteran's case for extraschedular consideration is not required. See 38 C.F.R. § 4.85, Diagnostic Code 6100; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating for compensation purposes based on individual unemployability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not reflect, that the disability at issue renders him unemployable. The Board acknowledges that the April 2011 VA examiner noted that the Veteran's bilateral hearing loss disability had significant effects on occupational activities because of hearing difficulty and the July 2013 VA examiner noted that the Veteran's hearing loss impacted his ordinary conditions of daily life, including ability to work, due to difficulty hearing in group situations, hearing certain voices, and hearing from the side. However, these findings do not demonstrate that the Veteran's bilateral hearing loss disability alone, regardless of his age, prevents him from securing and following substantially gainful employment. Accordingly, the Board concludes that a claim for a TDIU has not been raised. Finally, in reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against assigning increased disability ratings for the Veteran's bilateral hearing loss disability, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a compensable disability rating for bilateral hearing loss disability prior to July 20, 2013, is denied. Entitlement to a disability rating in excess of 10 percent for bilateral hearing loss disability from July 20, 2013, is denied ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs