Citation Nr: 1336069 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 11-25 526 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial compensable disability rating for bilateral hearing loss. ATTORNEY FOR THE BOARD D. Havivi, Associate Counsel INTRODUCTION The Veteran had active service from February 1963 to December 1964. This case comes before the Board of Veterans' Appeals (BVA or Board) on appeal of an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In his VA-9 form, the Veteran indicated that he only wished to appeal bilateral hearing loss and not his claim for entitlement to a VA pension. Therefore, the issue of entitlement to a VA pension is not before the Board. The Veteran also claimed his tinnitus was related to his service. A review of the Virtual VA paperless claims processing system and the Veterans Benefits Management System revealed that the tinnitus claim was granted in full in a February 2013 rating decision. There were no additional records which are pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran has service connected bilateral hearing loss. 2. The Veteran's service connected bilateral hearing loss is manifested by some high frequency hearing impairment, but level I ratings in each ear. CONCLUSION OF LAW The criteria for an initial compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1131, 1155, 5100, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.1-4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) includes notice that a disability rating and an effective date for the award of benefits will be assigned if the claim is granted. As this is an appeal arising from the initial grant of service connection, the notice that was provided in July 2010 before service connection was granted was legally sufficient and VA's duty to notify the Veteran in this case has been satisfied. See Hartman v. Nicholson, 483 F.3d 1311 (2006). VA also has a duty to assist the Veteran in the development of the claim, which includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all necessary development has been accomplished, as the record includes the Veteran's service treatment records, VA outpatient treatment records, private medical records, lay statements and the report of the VA examination. Therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Additionally, the October 2010 VA examination obtained in this case is adequate, as it is predicated on a review of the Veteran's medical history, contains a description of the history of the disability at issue, documents and considers the Veteran's complaints and symptoms, and fully provides medical evidence that is relevant to the governing rating criteria. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of his claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). Merits of the Claim The Veteran seeks an increased initial rating for his service-connected bilateral hearing loss. The RO granted service connection for the disability in an October 2010 rating decision. At that time a noncompensable evaluation was assigned under 38 C.F.R. § 4.85, Diagnostic Code 6100. The effective date was June 2010, the date of the claim. In the instant case, the criteria for a compensable evaluation for the Veteran's bilateral hearing loss have not been met. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Pertinent regulations do not require that all cases show all findings specified by the 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. §§ 4.7 and 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the then-current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to receive a staged rating. That is, it is possible to be awarded separate percentage evaluations for separate periods, based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (in determining the present level of a disability for any increased evaluation claim, the Board must consider staged ratings). Per 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 are conducted without the use of hearing aids. 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 percentage of speech discrimination and puretone threshold average intersect. 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 the puretone threshold average. Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. "Puretone threshold average," as used in Tables VI and VIa, is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. This average is used in all cases (including those in § 4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIa. Table VII, "Percentage Evaluations for Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. In January 2010, the Veteran sought treatment at the VA medical center. There, he showed right ear moderate sensorineural hearing loss from 3000-8000 Hertz. He also showed left ear mild sensorineural hearing loss from 1500-200 Hertz and moderately severe hearing loss from 3000-8000 Hertz. His speech discrimination was noted as excellent in both ears. These records do not provide specific decibel measurements, and therefore cannot be used to evaluate the Veteran. At the October 2010 examination, the examiner measured puretone thresholds in decibels: 500 Hertz 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Right ear N/A 10 20 50 55 Left ear N/A 15 35 65 70 The puretone threshold average was 34 decibels in the right ear and 46 in the left. Combined with speech recognition scores of 98% in the right ear and 96% in the left, both ears were rated as level I in Table VI. Using the two I ratings in Table VII, the RO rated the Veteran's disability at 0 percent. The Veteran obtained private medical treatment at the Defiance Hearing Aid Center. Of record is an audiogram, received by VA in December 2010, of the Veteran's hearing disability. The Board notes that the audiogram contains information in graphical form only. The Board may interpret graphical representations of audiometric data and convert them to numerical data in its role as a fact finder as long as the graphical representations are clear. See Ponder v. Shinseki, No. 09-0881, 2010 WL 4241571 (Vet. App. Oct. 28, 2010) (unpublished single-judge disposition) (noting that in Kelly v. Brown, 7 Vet. App. 471 (1995), the United States Court of Appeals for Veterans Claims (Court) determined that it could not interpret the results of an audiograph because interpretation required a factual finding, which was not the role of the Court in the first instance; the Board, however, was empowered to make factual findings in the first instance); see also Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (a non-precedential decision may be cited for any persuasiveness or reasoning it contains). The graphical data showed the following, in decibels. 500 Hertz 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Right ear N/A 15 20 45 55 Left ear N/A 20 40 65 65 The puretone threshold average was 34 decibels in the right ear and 48 in the left. It is not clear from the examination report if a Maryland CNC test was administered. Therefore, the Board must use Table VIa. Using Table VIa, the Veteran is rated "I" in the right ear and "II" in the left. Transferring these ratings to Table VII, the Veteran's disability is rated at 0 percent. There is nothing in this document that is significantly at variance with the VA testing, so additional testing is not indicated. 38 C.F.R. § 4.86(a) is not applicable because, in either ear, not all the puretone thresholds between 1000 Hertz and 4000 Hertz are above 55 decibels. 38 C.F.R. § 4.86(b) is inapplicable because neither of the 2000 Hertz readings is 70 decibels or higher. The criteria for an initial compensable rating have not been met. Staged ratings are inapplicable in the instant case because there is no evidence of change in the Veteran's disability. Fenderson v. West, 12 Vet. App. 119 (1999). The Board has also considered whether the Veteran's bilateral hearing loss warrants referral for extra-schedular consideration. In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. See Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination concerning whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. In this case, the Veteran's symptoms are expressly contemplated by the rating schedule. As outlined above, the Veteran has reported bilateral hearing loss. This is contemplated by the schedular criteria set forth in 38 C.F.R. §§ 4.85 and 4.86, Diagnostic Code 6100. Further, the Board observes that higher schedular ratings are potentially warranted, but the facts show that the Veteran does not possess the level of disability warranting higher ratings. In other words, Diagnostic Code 6100 adequately contemplates all of the Veteran's symptoms. Therefore, the first step of Thun has not been met, and referral for the assignment of an extraschedular disability rating is not warranted. While the Veteran has generally indicated that his hearing loss had some impact on his employment, specifics were not provided and it is not indicated that such impairment was over and above any contemplated by the rating schedule. 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 (2011); 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. Here, the Veteran has not presented evidence to support an increased rating for his bilateral hearing loss. Therefore, the evidence is not in equipoise and the Veteran cannot be given the benefit of the doubt. Because the evidence preponderates against the claim, entitlement to an increased initial rating for bilateral hearing loss is denied. ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs