Citation Nr: 1335116 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 07-25 906 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an evaluation in excess of 50 percent for bilateral hearing loss disability. 2. Entitlement to an evaluation in excess of 40 percent for thoracolumbar strain disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran had active service from July 1960 to April 1964. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. When this case was most recently before the Board in April 2011, it was decided in part and remanded in part. The Veteran's claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities was granted by the RO in a March 2012 rating decision. That issue is no longer before the Board as the Veteran has been granted the full benefit sought. In a statement received in August 2013, the Veteran's representative claimed that the Veteran is entitlement to service connection for a psychiatric disability, a heart disability, a bilateral knee disability, and a gastrointestinal disability, all as secondary to the service-connected thoracolumbar strain disability. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). As such, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. The issue of entitlement to an evaluation in excess of 40 percent for thoracolumbar strain disability is addressed in the REMAND that follows the decision below. FINDING OF FACT Throughout the entire period on appeal, the Veteran's hearing impairment has been no worse than Level VII in the right ear and IX in the left ear. CONCLUSION OF LAW The criteria for a disability evaluation in excess of 50 percent for bilateral hearing loss disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Notice & Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall...take due account of the rule of prejudicial error')." The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice by correspondence sent in January 2007. Although the Veteran was not provided complete notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the receipt of all pertinent evidence, the originating agency readjudicated the claim. There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). Regarding VA's duty to assist, all appropriate development to obtain the Veteran's pertinent VA and private outpatient treatment records, as well as his Social Security Administration records has been completed. In addition, the Veteran has been afforded appropriate VA examinations. Further, the Board finds that there has been substantial compliance with the April 2011 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has not identified any outstanding evidence that should be obtained to substantiate his claim. The Board is also unaware of any such evidence. In sum, the Board also is satisfied that the originating agency has complied with its duty to assist the Veteran in the development of the facts pertinent to this claim. Accordingly, the Board will address the merits of the claim. General Legal Principles Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (2002); 38 C.F.R. § 4.1 (2013). Disability ratings for hearing loss disability are derived from mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85. 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. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(b). Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c). "Puretone threshold average" as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85(d). Table VII, "Percentage Evaluations of Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85(e). Provisions for evaluating exceptional patterns of hearing impairment are as follows: (a) When the puretone thresholds at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. (b) When the puretone thresholds are 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral; the numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2013) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability, except as noted below. By way of background, the Veteran was awarded service connection for bilateral hearing loss in an April 1971 decision. He was assigned a noncompensable rating, effective December 3, 1970. In a February 2003 decision, the RO increased the Veteran's rating from noncompensable to 40 percent disabling, effective March 16, 2000. The Veteran submitted the instant claim for an increased rating in June 2006. In the October 2006 rating decision on appeal, the RO increased the Veteran's rating from 40 to 50 percent disabling, effective June 29, 2006, the date of receipt of the claim for increase. In response to his claim, the Veteran underwent a VA audiometric examination in September 2006. The Veteran's puretone thresholds were as follows: HERTZ 1000 2000 3000 4000 RIGHT 35 70 95 90 LEFT 35 80 95 90 The puretone average for his right ear was 72.5. The puretone average for his left ear was 75. Speech recognition was 44 percent for his right ear and 40 percent for the left ear. The examiner diagnosed bilateral sensorineural hearing loss. Applying the values above to Table VI results in a Level VIII Roman numeral designation for the right ear and a Level IX Roman numeral designation for the left ear. Application of Level VIII and Level IX designations to Table VII results in a 50 percent evaluation. Neither ear demonstrates an exceptional pattern of hearing impairment under the provisions of 38 C.F.R. §§ 4.86(a) or 4.86(b); therefore, these provisions are not applicable. The Veteran underwent a VA audiometric examination in July 2011. On examination, the Veteran's puretone thresholds were as follows: HERTZ 1000 2000 3000 4000 RIGHT 55 80 90 100 LEFT 45 85 100 105 The puretone average for his right ear was 81.25 (81). The puretone average for his left ear was 83.75 (84). Speech recognition was 76 percent for his right ear and 78 percent for the left ear. The examiner diagnosed moderate to profound bilateral sensorineural hearing loss. The effect on the Veteran's occupation was noted as significant. Specifically, the examiner noted that the Veteran's word discrimination ability in a quiet setting was fair, bilaterally. The examiner stated that the Veteran would have difficulty interacting and hearing directions and instructions from co-workers and supervisors unless he was in a quiet one on one situation. The examiner further noted that even in a quiet situation, the Veteran might misunderstand words because of his high frequency hearing loss which results in a decreased ability to discriminate consonant sounds. The examiner stated that this difficulty would dramatically increase when in the presence of background noise, a reverberant environment, or in a group of people. The examiner reported that depending on the vocation, the Veteran might have trouble working well in noisy or reverberant environments, environments which require face communication equipment, or in jobs which require a great deal of attention to high pitched sounds. The examiner, however, reported that the Veteran was able to communicate effectively during the examination. The examiner concluded that the Veteran's bilateral hearing loss alone was not sufficient to render the Veteran unemployable. The right ear demonstrates an exceptional pattern of hearing impairment under the provisions of 38 C.F.R. § 4.86(a). Applying the value of 81.25 to Table VIA results in a Level VII Roman numeral designation for the right ear. Applying the value of 83.75 to Table VI results in a Level V Roman numeral designation for the left ear. Application of Level VII and Level V designations to Table VII results in a 30 percent evaluation. Upon review of the evidence of record, it is evident the criteria for a rating in excess of 50 percent under Diagnostic Code 6100 are not met. Although the aforementioned audiological evaluations clearly show the Veteran has hearing loss, the hearing loss has not met the next higher 60 percent rating under the rating schedule. VA must consider all favorable lay evidence of record. 38 U.S.C.A. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence above the Board has considered the lay evidence provided by the Veteran in the form of his correspondence to VA, in which he generally contends his disability should be rated higher than the current 50 percent evaluation. The Court has 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." Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). In this regard, the July 2011 VA examiner noted that the Veteran's bilateral hearing loss disability had significant effects on his occupation, as he would have difficulty interacting and hearing directions and instructions, and thus, he might have trouble working well in noisy or reverberant environments, environments which require face communication equipment, or in jobs which require a great deal of attention to high pitched sounds. The examiner, however, also concluded that the bilateral hearing loss alone was not sufficient to render the Veteran unemployable. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, the rating schedule for hearing loss is a reasonable exercise of the Secretary's rulemaking authority. Martinak, 21 Vet. App. 447. Whereas the Veteran's hearing loss has not been shown by medical or lay evidence to be worse than that measured during audiological evaluation, the lay evidence does not support a claim for an evaluation in excess of 50 percent. Consideration has been given to assigning a staged rating; however, at no time during the period under review does the disability warrant an evaluation in excess of 50 percent under the schedular criteria. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Finally, the Board has considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The Court has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In the case at hand, the manifestations of the of the disability, hearing impairment in each ear, are contemplated by the schedular criteria. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. In reaching the foregoing determination, the Board has considered the doctrine of reasonable doubt, but has determined that it is not applicable because the preponderance of the evidence is against the claim. Gilbert, 1 Vet. App. 49, 54. ORDER Entitlement to an evaluation in excess of 50 percent for bilateral hearing loss disability is denied. REMAND Additional development is required before the remaining issue on appeal is adjudicated. In the April 2011 remand, the Board, in pertinent part, directed the RO or the Appeals Management Center (AMC) to adjudicate the issue of entitlement to service connection for degenerative joint disease of the thoracolumbar spine prior to readjudicating the issue of entitlement to an evaluation in excess of 40 percent for the service-connected thoracolumbar strain disability. In this regard, the Board found the claim of entitlement to service connection for degenerative joint disease of the thoracolumbar spine "inextricably intertwined" with the issue of entitlement to an increased rating for the thoracolumbar strain disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Although the AMC readjudicated the issue of entitlement to an evaluation in excess of 40 percent for thoracolumbar strain disability in a March 2012 supplemental statement of the case, there is no indication of record that it adjudicated the issue of entitlement to service connection for degenerative joint disease of the thoracolumbar spine. As there has not been substantial compliance with the remand directives, the appeal must be remanded again. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, this case is REMANDED to the RO or the AMC, in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake all indicated development in response to the claim of entitlement to service connection for degenerative joint disease of the thoracolumbar spine. 2. Then, the RO or the AMC should issue a rating decision adjudicating the issue of entitlement to service connection for degenerative joint disease of the thoracolumbar spine. The Veteran should be informed of his appellate rights with respect to the decision. 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the issue of entitlement to a disability evaluation in excess of 40 percent for the service-connected back disability. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or the AMC should issue to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs