Citation Nr: 1335204	
Decision Date: 11/01/13    Archive Date: 11/13/13

DOCKET NO.  10-24 431	)	DATE
	)
	)

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


THE ISSUE

Entitlement to a compensable rating for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

Laura E. Collins, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1974 to October 1978.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.

By way of background, an August 1997 rating action confirmed and continued a noncompensable disability evaluation for service connected bilateral hearing loss.  Within one year of this determination, the Veteran did not express disagreement with this disability evaluation, nor was any relevant new and material evidence, medical or lay, physically or constructively received by VA prior to the expiration of the appellate period.  See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.156(b); 20.201 (2013); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011).  As such, the August 1997 rating action became final.

In December 2012, the Board remanded this case for additional development.  It now returns for further appellate review.


FINDING OF FACT

The Veteran has, at worst, Level IV hearing in the right ear and Level II hearing in the left ear.


CONCLUSION OF LAW

The criteria for a compensable rating for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); §38 C.F.R. §§ 3.102, 4.85, 4.86, Diagnostic Code 6100 (2013).






REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist 

VA must provide claimants with notice and assistance in substantiating claims for benefits.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  Proper 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.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).

The notice requirements apply to all five elements of a service connection claim, including 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.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on the claim for VA benefits.  38 U.S.C.A. § 5103(a); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The Board finds that VA has satisfied its duty to notify.  Specifically, a January 2009 letter, sent prior to the decision on appeal, advised the Veteran of the evidence and information necessary to substantiate his increased rating claim and to establish a disability rating and an effective date.  The same letter advised the Veteran of his and VA's respective responsibilities in obtaining the evidence and information.

Relevant to the duty to assist, the Veteran's VA treatment records, service treatment records, and service personnel records have been obtained and considered.  He has not indicated there are any additional records that VA should seek to obtain on his behalf.

The Veteran was also provided with VA audiological examinations in connection with this claim in January 2009 and March 2010.  In its December 2012 remand, the Board noted that the March 2010 VA examiner recommended an ENT (Ear, Nose and Throat) referral, but there was no indication that further efforts were made by the RO to obtain the recommended ENT evaluation.  On remand, the RO was instructed to obtain the records of such consult and to provide a new VA audiology examination to ascertain the current severity and effect of the Veteran's hearing loss.  In January 2013 the RO associated the record of a May 2010 ENT consult with the claims file.  In March 2013, a VA audiology examination was conducted that addressed hearing acuity and its effect on occupational functioning and daily activities.  The Board finds that the RO substantially complied with the December 2012 remand orders and no further action is necessary in this regard.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). 

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).  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 (2007).  Further, in Martinak the United States Court of Appeals for Veterans Claims (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, all of the VA examinations were conducted by audiologists.  The 2013 VA examination report contains detailed descriptions of the effects on occupational function and daily activities and utilizes the Maryland CNC test.  Thus, the Board finds that the 2013 examination is adequate.  The Veteran has not alleged, nor does the record show, that his service-connected hearing loss has worsened in severity since the most recent examination in 2013.  As such, a new examination is not required.  See Palczewski v. Nicholson, 21 Vet. App. 174 (2007).  

The Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim.  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim.

II.  Analysis

Disability evaluations are determined by the application of a schedule of ratings, 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.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.  The Veteran's entire history is reviewed when making disability evaluations.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  

Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate.  See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

When there is an approximate balance of evidence for and against the issue, all reasonable doubt will be resolved in the Veteran's favor.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran's service-connected bilateral hearing loss disability is currently rated noncompensably disabling under the provisions of Diagnostic Code 6100 of the Schedule for Rating Disabilities.  38 C.F.R. § 4.85.  He seeks a higher rating, noting that his hearing loss is severe enough to require hearing aids.

The Board notes that service connection is in effect for tinnitus, rated 10 percent disabling.  Symptoms related to service-connected tinnitus may not be considered while evaluating the service-connected hearing loss.  See 38 C.F.R. § 4.14.  The Board must avoid the evaluation of the same manifestation under different diagnoses.  Id.

Under the VA rating schedule, hearing impairment is evaluated based on audiological testing, including a puretone audiometry test and the Maryland CNC controlled speech discrimination test.  38 C.F.R. § 4.85.  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.  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).  The puretone threshold average is the average of the puretone thresholds, in decibels, at 1000, 2000, 3000 and 4000 Hertz [Hz], shown on a puretone audiometry test.  38 C.F.R. § 4.85.  When there is no speech discrimination testing, Table VIa is used, based on the puretone threshold average alone.  38 C.F.R. § 4.85(c).  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). 

Under 38 C.F.R. § 4.86, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels or more, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86(a).  Further, when the average puretone threshold is 30 decibels at 1000 Hz, and 70 decibels or more at 2000 Hz, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Level. 38 C.F.R. § 4.86(b).  As an initial matter, the Board finds that an exceptional pattern of hearing under 38 C.F.R. § 4.86 has not been shown in any of the Veteran's audiograms during the appeal period; therefore that regulation is inapplicable. 

The record contains three audiograms during the appeal period.  Pure tone threshold levels, in decibels, were as follows: 

January 2009 

HERTZ
500
1000
2000
3000
4000
RIGHT
35
35
40
45
65
LEFT
30
30
35
45
50

Pure tone threshold levels averaged 46 decibels for the right ear and 40 decibels for the left ear.  There was no speech discrimination testing.  These results correspond to Level II hearing on the right and Level I hearing on the left pursuant to Table VIa.  38 C.F.R. § 4.85(c).  Level II and Level I correspond to a noncompensable evaluation pursuant to Table VII.

March 2010

HERTZ
500
1000
2000
3000
4000
RIGHT
50
45
50
60
85
LEFT
30
30
35
45
50

Pure tone threshold levels averaged 60 decibels for the right ear and 40 decibels for his left ear.  Speech discrimination testing was 80 percent in the right ear and 88 percent in the left ear.  These results correspond to Level IV hearing on the right and Level II on the left pursuant to Table VI.  Level IV and Level II correspond to a noncompensable evaluation pursuant to Table VII.

March 2013

HERTZ
500
1000
2000
3000
4000
RIGHT
40
35
40
50
60
LEFT
40
40
35
50
50

Pure tone threshold levels averaged 46 decibels for the right ear and 44 decibels for his left ear.  Speech discrimination testing was 92 percent in the right ear and 92 percent in the left ear.  These results correspond to Level I hearing bilaterally pursuant to Table VI.  Level I and Level I correspond to a noncompensable evaluation pursuant to Table VII.

Based on the results of the audiological evaluations discussed above, and in the absence of any additional medical evidence showing a more severe hearing disability, a compensable evaluation is not warranted.  The Board does not discount the difficulties the Veteran has with his auditory acuity.  However, the Board must predicate its determination on the basis of the results of the audiology studies of record.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (the assignment of a disability rating for service-connected hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered).  

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 has an effect on the Veteran's occupational function and daily activities.  Martinak, 21 Vet. App. at 454-55.  Audiologists' reports as to the effects of hearing loss on occupational functioning and daily activities can support consideration of an extraschedular evaluation.  Id.  The evidence reflects that the 2013 examiner reviewed the claims file and considered the Veteran's reports that his hearing loss affected his ordinary conditions of life: he heard constant ringing with occasional hissing in the morning, elevation changes during air travel plugged his ears up for several days, he had to cover his hearing aids in rain and wind to prevent interference, he had to turn up the TV or radio when he was not wearing hearing aids, and he sometimes misunderstands others.  The 2013 examiner also considered possible occupational effects but found none.  

In summary, the Veteran's hearing loss is manifested by difficulty hearing speech and TV/radio, ringing, hissing, and ears plugging during flight.  The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing.  The ringing is contemplated by the Veteran's 10 percent disability evaluation for tinnitus.  Hence, the rating criteria contemplate the Veteran's symptomatology.  The Board notes that occasional morning hissing and plugged ears after elevation changes are not described in the rating code; however it does not find that these functional effects are so exceptional or unusual so as to warrant extraschedular consideration.  They do not result in a disability picture on par with marked interference with employment or frequent periods of hospitalization.  Referral for consideration of an extraschedular rating is therefore not warranted.  Thun v. Peake, 22 Vet. App. 111 (2008). 

Finally, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that claim for total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran.  Entitlement to a TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability.  As there is no evidence of unemployability due to the Veteran's service-connected hearing loss and/or tinnitus, the question of entitlement to a TDIU is not raised.

As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine does not apply, and the claim for a compensable disability rating for bilateral hearing loss must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert.


ORDER

A compensable rating for bilateral hearing loss is denied.



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs