Citation Nr: 1335276	
Decision Date: 11/01/13    Archive Date: 11/13/13

DOCKET NO.  11-14 926	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to an evaluation in excess of 10 percent for a left ear hearing loss disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

H. Bunker, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1956 to July 1959.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.

The case was brought before the Board in April 2013, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his appeal, to include obtaining treatment records and affording the Veteran a new VA examination.  The Veteran's most recent treatment records from the VA Medical Center were obtained and associated with the claims file.  The Veteran was afforded a VA examination in July 2013 for his hearing loss disability claim.  Therefore, the Board finds that there has been substantial compliance with its remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).

This appeal was processed using the Virtual VA paperless claims processing system.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.

The Board previously referred the issue of entitlement to service connection for a right ear hearing loss disability, to include as secondary to a left ear hearing loss disability.  No action has been taken on this issue.  Accordingly, the issue is again REFERRED to the RO for proper adjudication.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).




FINDING OF FACT

The Veteran's audiometric examination corresponds to no more than a level XI for the left ear.


CONCLUSION OF LAW

The criteria for an evaluation in excess of 10 percent for a left ear 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

The Board has thoroughly reviewed all the evidence in the Veteran's claims folder.  Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  The Veteran 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 veteran). 

It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim.  Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013).

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

The notice requirements were met in this case by a letter sent to the Veteran in May 2009.  This letter advised the Veteran of the information necessary to substantiate his claims and of his and VA's respective obligations for obtaining specified types of evidence.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b).  This letter also advised the Veteran of how disability ratings and effective dates are determined.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005).

The notice required by 38 U.S.C.A. § 5103(a) 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).  That was done in this case.

The Veteran's service treatment records and VA treatment records are in the file.  The Veteran has not indicated that there are any additional outstanding records to be obtained.  The duty to assist with obtaining medical records has been satisfied.

The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran.  Green v. Derwinski, 1 Vet. App. 121 (1991).  In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a).
The Veteran was afforded a VA medical examination most recently in July 2013 to determine the severity of his left ear hearing loss.  This opinion was rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file.  The examiner obtained an accurate history.  The examiner provided a detailed explanation for the opinions that were reached.  

There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorder since he was last examined.  38 C.F.R. § 3.327(a).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  VAOPGCPREC 11-95.  Therefore, the Board finds that the examination is adequate.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.

Increased Rating

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  The Veteran's entire history is reviewed when making disability evaluations.  See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

Where, as in the present case, entitlement to compensation has already been established and increase in disability rating is at issue, the present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period.  Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts).  See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999).

The Veteran's service-connected left ear hearing loss disability has been assigned a 10 percent evaluation by the RO under the provisions of Diagnostic Code 6100.  See 38 C.F.R. § 4.85.  The ratings schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment.  Table VII is used to determine the percentage evaluation by combining the Roman numeral designations of hearing impairment in both ears.  Id.

When the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIA is to be used, whichever results in the higher numeral.  38 C.F.R. § 4.86(a).  Additionally when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIA is to be used, whichever results in the higher numeral.  Thereafter, that numeral will be elevated to the next higher numeral.  38 C.F.R. § 4.86(b) (2013).

The Veteran was afforded a VA examination in May 2009.  The pure tone thresholds, in decibels, were as follows:


HERTZ


1000
2000
3000
4000
AVERAGE
LEFT
95
95
100
105
98.75

Speech audiometry revealed speech recognition ability of 96 percent in the left ear.  


The Veteran was afforded a VA examination in July 2013.  The pure tone thresholds, in decibels, were as follows:


HERTZ


1000
2000
3000
4000
AVERAGE
LEFT
105
105+
105+
105+
105

Speech audiometry revealed speech recognition ability of 34 percent in the left ear.  

Since the Veteran's right ear is not service connected, a designation of I is used for this ear in Table VII.  38 C.F.R. § 4.85(f).  The Veteran's representative argues that the issue of entitlement to service connection for a right ear hearing loss disability is "inextricably intertwined" with the issue of entitlement to an increased evaluation for a left ear hearing loss disability and needs to be adjudicated before the Board can decide the increased rating issue of left ear hearing loss.  See September 2013 Post Remand Brief.  This issue has been referred to the AOJ for adjudication as the Board does not find that the issues are "inextricably intertwined."  See Harris v. Derwinski, 1 Vet. App. 180 (1991).  Furthermore, even if the right ear was service-connected, both the May 2009 and July 2013 audiogram results for the right ear result in a designation of I and would not increase the Veteran's evaluation for a hearing loss disability.  

Entering the average pure tone threshold and speech recognition ability into Table VIA reveals the highest numeric designation of hearing impairment for the left ear is XI.  38 C.F.R. § 4.85.  Entering both the category designations for each ear into Table VII results in a 10 percent disability rating under Diagnostic Code 6100.

The Board is also aware of the Court's decision in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) which 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.  While not argued by the Veteran's representative, the May 2009 and July 2013 VA examination reports document the Veteran's difficulty hearing in an occupational setting and in normal conversations when trying to localize sounds.
The Board acknowledges the Veteran's statements that his left ear hearing loss disability warrants an increased disability evaluation throughout the appeal period.  The Board has considered the Veteran's statements that his hearing loss has worsened and that he has difficulty hearing in virtually all situations.  The Veteran is competent to report matters of which he has personal knowledge, such as difficulty hearing in conversations with others.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); 38 C.F.R. § 3.159(a)(2).  

However, as a layman without the appropriate medical training and expertise, the Veteran is not further competent to provide a probative (persuasive) opinion on a medical matter, especially the severity of his left ear hearing loss disability in relation to the applicable rating criteria.  Medical examiners, including the VA compensation examiner, have conducted objective audiograms to measure the severity of the Veteran's hearing loss disability.  The rating criteria determination is multi-factorial, not just predicated on lay statements and other testimony, rather, all of the relevant medical and other evidence.  The Federal Circuit Court has recognized the Board's 'authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence.'  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). 

In sum, the Board finds that there is no probative audiological evidence of record to support an evaluation in excess of 10 percent for the Veteran's left ear hearing loss disability at any time during this appeal period.  The preponderance of the evidence is against the Veteran's claim for a higher rating.  Consequently, the benefit-of-the-doubt rule does not apply.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Extra-Schedular Consideration

There is no evidence of exceptional or unusual circumstances to warrant referring this claim for extra-schedular consideration.  38 C.F.R. § 3.321(b)(1).  The Court has clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, there must be a determination of whether the evidence presents such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, there must be a determination of 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 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 extra-schedular rating under 38 C.F.R. § 3.321(b)(1).

The Veteran's service-connected left ear hearing loss is appropriately evaluated.  His primary symptom is hearing loss.  All of his symptoms are accounted for in the regular schedular rating criteria.  According to 38 C.F.R. § 4.1, 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.  Indeed, in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the Court reiterated this, noting the disability rating, itself, is recognition that industrial capabilities are impaired.

As the assigned schedular evaluation for the service-connected left ear hearing loss is adequate, referral for an extra-schedular rating is unnecessary.  Thun, supra.  Furthermore, there is no evidence of any exceptional or unusual circumstances, such as frequent hospitalizations, suggesting he is not adequately compensated for this disability by the regular Rating Schedule.  Extra-schedular referral is not warranted under the circumstances presented.  See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996).



ORDER

Entitlement to an evaluation in excess of 10 percent for a left ear hearing loss disability is denied.



____________________________________________
KELLI A. KORDICH
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs