Citation Nr: 1336071	
Decision Date: 11/06/13    Archive Date: 11/13/13

DOCKET NO.  12-30 390	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Honolulu, Hawaii


THE ISSUE

Entitlement to a rating in excess of 70 percent prior to April 1, 2010, and in excess of 60 percent disabling thereafter for bilateral hearing loss, to include the propriety of the reduction of the evaluation from 70 percent to 60 percent, effective April 1, 2010.
 

REPRESENTATION

Veteran represented by:	Hawaii Office of Veterans Services


ATTORNEY FOR THE BOARD

J.N. Moats, Counsel



INTRODUCTION

The Veteran served on active duty from March 1951 to February 1953.  He is the recipient of the Combat Infantryman Badge.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from  a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii.  

By way of background, VA received the Veteran's claim for an increased rating for his bilateral hearing loss on January 30, 2008.  In a March 2009 rating decision, the RO increased the Veteran's disability rating from 50 percent to 70 percent, effective January 30, 2008, the date of claim.  The following month in April 2009, the Veteran filed a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).  In an attached statement, the Veteran reported that he was forced to retire due to his hearing loss and that his hearing loss was progressing.  The Veteran was afforded another VA examination in July 2009.  As new and material evidence, specifically  the Veteran's April 2009 statement and the subsequent July 2009 VA examination, was submitted prior to expiration of the appeal period (i.e., within one year) of the March 2009 rating decision, this evidence is considered as having been filed in connection with the January 2008 claim.  See 38 C.F.R. § 3.156(b) (2013).

Moreover, in a subsequent September 2009 rating decision, the RO proposed to reduce the Veteran's 70 percent disability rating to 60 percent based on the July 2009 VA examination.  In the January 2010 rating decision, the RO effectuated the reduction, effective April 1, 2010.  Thus, the appeal has been ongoing since the January 30, 2008 claim was received and encompasses both a claim for an increased rating as well as a determination as to whether the reduction was proper.  As such, the issue has been characterized as set forth on the front page of this decision.    

Following the January 2010 rating decision, which reduced the Veteran's ratings for his injury to the muscle group of the left thigh and degenerative arthritis of the left knee, he entered a notice of disagreement in October 2010 as to the propriety of the reductions.  Thereafter, in a September 2012 rating decision, the RO increased both disability ratings to 40 percent each.  In a statement dated that same month, the Veteran' representative accepted the increase and withdrew the appeal of these issues.  The RO confirmed the withdrawal in a subsequent letter.  Additionally, following a September 2009 rating decision that denied a rating in excess of 30 percent for the Veteran's for anxiety disorder/depressive disorder, the Veteran entered a notice of disagreement in September 2010 and a statement of the case was issued in June 2012.  However, the Veteran did not perfect his appeal with the filing of a timely substantive appeal.  Moreover, in a June 2012 statement, he withdrew the appeal of this issue.  Thus, there remain no allegations of errors of fact or law for appellate consideration of these issues.  See 38 C.F.R. § 20.204.

The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim.  A review of the Virtual VA claims file reveals that additional VA treatment records dated to May 2012, which were considered in the statement of the case issued in September 2012.  The remaining records contained in Virtual VA are either duplicative of records contained in the paper claims file or not pertinent to the issue on appeal.  

In July 2013, the Veteran filed another claim for a TDIU due to all of his service-connected disabilities.  In August 2013, the RO sent notice to the Veteran concerning the information and evidence required for such claim.  However, to date, it does not appear that the issue has been adjudicated by the agency of original jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  

Please note 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.  At the time of the January 2010 rating decision, the 70 percent rating for the Veteran's service-connected bilateral hearing loss had been in effect for less than five years.

2.  The evidence of record at the time of the January 2010 rating decision demonstrates a sustained improvement in the Veteran's service-connected bilateral hearing loss.

3.  Prior to April 1, 2010, the Veteran's service-connected bilateral hearing loss was productive of no worse than Level VIII hearing acuity for the right ear and Level XI hearing acuity of the left ear.

4.  From April 1, 2010, the Veteran's service-connected bilateral hearing loss was productive of no worse than Level VII hearing acuity for the right ear and Level XI hearing acuity of the left ear.


CONCLUSIONS OF LAW

1.  The reduction of a rating evaluation for bilateral hearing loss from 70 percent to 60 percent, effective April 1, 2010, was proper.  38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.105, 3.344, Part 4, including §§ 4.7, 4.85, Diagnostic Code 6100 (2013).

2.  Prior to April 1, 2010, the criteria for entitlement to a disability rating in excess of 70 percent for the Veteran's service-connected bilateral hearing loss had not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 3.321(b), Part 4, including §§ 4.7, 4.85, Diagnostic Code 6100 (2013).

3.  From April 1, 2010, the criteria for entitlement to a disability rating in excess of 60 percent for the Veteran's service-connected bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 3.321(b), Part 4, including  §§ 4.7, 4.85, Diagnostic Code 6100 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).  

Proper notice from VA must inform the claimant of any information and medical or lay 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect).  

In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). 

Here, the Veteran was sent letters in March 2008 and July 2009 that fully addressed all notice elements and was sent prior to the January 2010 rating decision.  The letters provided information as to what evidence was required to substantiate his increased rating claim and of the division of responsibilities between VA and a claimant in developing an appeal.  The letters also provided notice of the evidence and information necessary to establish an effective date in accordance with Dingess/Hartman, supra.  Accordingly, no further development is required with respect to the duty to notify.

Next, VA has a duty to assist the Veteran in the development of the claims.  This duty includes assisting him 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. 

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The claims file contains the Veteran's post-service reports of VA and private treatment and VA examinations.  As noted above, additional VA treatment records dated to May 2012 have been associated with the Veteran's Virtual VA record.  Moreover, the Veteran's statements in support of the claim are of record.  The Board has carefully reviewed such statements and concludes no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional 
treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.   

Additionally, the Veteran was afforded VA examinations in March 2008 and July 2009 to evaluate the severity of his service-connected bilateral hearing loss.  The Board finds that the VA examinations are adequate because, as discussed below, they were based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because they provide detail sufficient to allow the Board to make a fully informed determination.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)).  Moreover, as will be discussed in greater detail herein, such examination reports provide sufficient details regarding the functional effects of the Veteran's bilateral hearing loss so as to allow the Board to consider whether referral for an extra-schedular rating is warranted.  See Martinak v. Nicholson, 21 Vet.App. 447 (2007).   

Furthermore, the Veteran has not asserted, and the evidence does not show, that his symptoms have materially worsened since the most recent July 2009 evaluation.  See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).  In this regard, subsequent audiograms done at VA facilities in December 2009, July 2011 and March 2012 do not demonstrate a significant audio threshold shift.  The Board accordingly finds no reason to remand for further examination. 

For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

Analysis

The Veteran is seeking an increased rating for his service-connected bilateral hearing loss.  Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7. 

To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Where an increase in the level of a disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  As in the instant case, separate ratings for distinct periods of time, based on the facts are for consideration.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  

This appeal also arises out of the Veteran's disagreement with a decision to reduce the disability rating for his service-connected bilateral hearing loss from 70 percent to 60 percent disabling.  A claim stemming from a rating reduction action is a claim as to whether the reduction was proper, not whether the Veteran is entitled to an increased rating.  See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992).  

Regulations provide that where the reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, rating action will be taken.  The reduction will be made effective the last day of the month in which a 60-day period from the date of notice to the payee expires.  The Veteran will be notified of the proposed reduction, that he has 60 days to present evidence showing why the reduction should not be implemented, and that he may request a hearing.  38 C.F.R. § 3.105(e).  In the instant case, the Board observes that the RO did comply with § 3.105(e) in that the Veteran was informed of the proposed action in a September 2009 rating decision.  In an attached letter, the Veteran was notified of the opportunity to present additional evidence within a 60-day period as well as his right to request a personal hearing.  Thereafter, the reduction was effectuated in the January 2010 rating decision on appeal, which reduced his evaluation for his bilateral hearing loss from 70 percent to 60 percent, effective April 1, 2010.

The criteria governing certain rating reductions for certain service-connected disabilities is found in 38 C.F.R. § 3.344.  The United States Court of Appeals for Veterans Claims (Court) stated that this regulation applied to ratings that had been continued for long periods of time at the same level (five years or more).  Brown v. Brown, 5 Vet. App. 413 (1993).  In the present case, the 70 percent rating was in effect from January 30, 2008, less than 5 years, and thus the provisions of 38 C.F.R. § 3.344 pertaining to stabilization of disability evaluations do not apply; reexamination disclosing improvement will warrant a rating reduction.  38 C.F.R.  § 3.344(c).  Nevertheless, the Court noted in Brown that there are several general VA regulations that apply to all rating reductions regardless of whether the rating has been in effect for five years or more.  Id. at 420-421.  

Specifically, 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history.  Furthermore, 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms.  Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work.  Brown, 5 Vet. App. at 420-21; see 38 C.F.R. §§ 4.2, 4.10.  A claim as to whether a rating reduction was proper must be resolved in the Veteran's favor unless the Board concludes that a fair preponderance of evidence weighs against the claim.  Brown, 5 Vet. App. at 421.

In considering the propriety of a reduction, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated actual improvement.  Dofflemyer, supra, at 277.

Accordingly, here, in addition to determining whether an increased rating is warranted for the Veteran's hearing loss, the Board must also determine whether the evidence of record as of April 2010 established that the Veteran's bilateral hearing loss no longer approximated a 70 percent rating under 38 C.F.R. § 4.85, Diagnostic Code 6100.  

The Ratings Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  See 38 C.F.R.  § 4.85.

Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing.  Id.

Table VIA is used when the examiner certifies that the use of 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.  38 C.F.R. § 4.85(c).

When the puretone threshold 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.  38 C.F.R. § 4.86(a).

When the puretone threshold is 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.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(b).

To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels designated from I for essentially normal acuity, through XI for profound deafness.  38 C.F.R. § 4.85, Tables VI, VII.

A 60 percent evaluation is provided where hearing in the better ear is VII and hearing in the poorer ear is X to XI; where hearing in the better ear is VIII and hearing in the poorer ear is X; or where hearing in the better ear is IX and hearing in the poorer ear IX.  38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100.  A 70 percent evaluation is provided where hearing in the better ear is VIII and hearing in the poorer ear is XI; or where hearing in the better ear is IX and hearing in the poorer ear X.  38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100.

Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).

The Veteran filed his claim for an increased rating in January 2008.  VA treatment records and private treatment records dated in 2007 observed that the Veteran was prescribed hearing aids for his hearing loss.  

The Veteran was afforded a VA audiological examination in March 2008, which showed pure tone thresholds, in decibels, as follows:





HERTZ



1000
2000
3000
4000
AVG.
RIGHT
55
75
75
85
73
LEFT
75
80
95
105
89

Speech audiometry revealed speech recognition ability of 46 percent in the right ear and of 20 percent in the left ear.  Although the claims file was not available for review, the diagnosis was moderately-severe to severe sensorineural hearing loss for the right ear and a severe to profound mixed loss for the left ear.  Word recognition scores were very poor bilaterally.  The examiner observed that it was possible that medical follow up could improve the Veteran's hearing by treating the conductive component of the left ear and recommended that the Veteran follow up with a ear-nose-throat physician regarding the conductive component.       

At the time of the March 2008 VA audiological examination, the Veteran had an average puretone hearing loss in the right ear of 73 decibels, with 46 percent speech discrimination, which translates to a Roman numeral designation of VIII for the right ear under Table VI.  He was shown to have an average puretone hearing loss in the left ear of 89 decibels, with 20 percent speech discrimination, which translates to a Roman numeral designation of XI for the left ear under Table VI. 38 C.F.R. § 4.85, Table VI.  However, as the puretone threshold was 55 decibels or more at each of the four specified frequencies in both ears, the Board must also determine the Roman numeral designation from Table VIA with respect to each ear.  An average puretone threshold average of 73 under this table translates to a Roman numeral designation of VI for the right ear and an average puretone threshold of 89 under this table translates to a Roman numeral designation of VIII.  38 C.F.R.  § 4.85, Table VIA.  As such, it is more beneficial to the Veteran to apply the Roman numeral designations from Table VI as they are higher.  Thus, when applying Table VII, Diagnostic Code 6100, level VIII for the right ear and level XI for the left ear equates to a 70 percent disability evaluation.  
 
Based on this examination, in the March 2009 rating decision, the RO assigned a 70 percent disability rating, effective January 30, 2008, the date of claim.  Interestingly, it appears that, given the conductive component of the Veteran's hearing loss as noted in the March 2008 VA examination, the RO unequivocally stated that there was a likelihood of improvement and the evaluation assigned was not considered permanent.  

Subsequently, in April 2009 the Veteran filed a claim for a TDIU.  In an attached statement, he reported that, since he could not understand orders or assignments given by his supervisors and given that he had several incidents where he misunderstood and did the wrong things, he retired due to his hearing loss disability.  

The Veteran was afforded another VA audiological examination in July 2009, which showed pure tone thresholds, in decibels, as follows:




HERTZ



1000
2000
3000
4000
AVG.
RIGHT
55
70
75
85
71
LEFT
60
65
75
75
69

Speech audiometry revealed speech recognition ability of 64 percent in the right ear and of 34 percent in the left ear.  The claims file was reviewed.  The Veteran indicated that his hearing affected his daily activities because he had to ask others to repeat themselves.  The diagnosis was moderate-severe to severe sensorineural hearing loss in the right ear, with a slight conductive component at 4000 Hertz, and severe to moderate-severe to severe sensorineural hearing loss in the left ear.   No conductive component was mentioned with respect to the left ear.  Word recognition scores were poor in the right ear and very poor in the left ear.  No medical follow up was necessary at that time.  The examiner indicated that the Veteran had hearing loss across all frequencies and used hearing aids.  It may be more difficult to hear clearly in a noisy environment, even with the best hearing aids.  However, the examiner opined that no amount of hearing loss and/or tinnitus could prevent a person from being employable.  Even completely deaf individuals can seek and maintain employment, although retraining may be necessary.   

At the time of the July 2009 VA audiological examination, the Veteran was shown to have an average puretone hearing loss in the right ear of 71 decibels, with 64 percent speech discrimination, which translates to a Roman numeral designation of VII for the right ear under Table VI.  The Veteran was shown to have an average puretone hearing loss in the left ear of 69 decibels, with 34 percent speech discrimination, which translates to a Roman numeral designation of XI for the left ear under Table VI. 38 C.F.R. § 4.85, Table VI.  However, again, as the Veteran's puretone threshold was 55 decibels or more at each of the four specified frequencies in both ears, the Board must again determine the Roman numeral designation from Table VIA.  An average puretone threshold average of 71 under this table translates to a Roman numeral designation of VI for the right ear and an average puretone threshold average of 69 translates to a Roman numeral designation of V for the left ear.  38 C.F.R. § 4.85, Table VIA.  As such, it is more beneficial for the Veteran to apply the Roman numeral designations from Table VI for both ears as they are higher.  When applying Table VII, Diagnostic Code 6100, level VII for the right ear and level XI for the left ear equates to a 60 percent disability evaluation.  

As such, in the September 2009 rating decision, the RO proposed to reduce the Veteran's rating to 60 percent.  As no additional evidence was submitted, the RO effectuated this reduction in the January 2010 rating decision, effective April 1, 2010.  In his October 2010 notice of disagreement, the Veteran indicated that he did not feel like his bilateral hearing loss had improved. 

VA treatment records include audiological evaluations dated in December 2009, July 2011, and March 2012.  The December 2009 evaluation showed pure tone thresholds, in decibels, as follows:




HERTZ



1000
2000
3000
4000
AVG.
RIGHT
55
70
80
80
71
LEFT
60
80
85
95
80

Speech audiometry revealed speech recognition ability of 64 percent in the right ear and of 8 percent in the left ear.  At the time of the December 2009 VA evaluation, the Veteran was shown to have an average puretone hearing loss in the right ear of 71 decibels, with 64 percent speech discrimination, which translates to a Roman numeral designation of VII for the right ear under Table VI.  The Veteran was shown to have an average puretone hearing loss in the left ear of 80 decibels, with 8 percent speech discrimination, which translates to a Roman numeral designation of XI for the left ear under Table VI. 38 C.F.R. § 4.85, Table VI.  However, again, as the Veteran's puretone threshold was 55 decibels or more at each of the four specified frequencies in both ears, the Board must again determine the Roman numeral designation from Table VIA.  An average puretone threshold average of 71 under this table translates to a Roman numeral designation of VI for the right ear and an average puretone threshold average of 80 translates to a Roman numeral designation of VII for the left ear.  38 C.F.R. § 4.85, Table VIA.  As such, again, it is more beneficial to the Veteran to apply the Roman numeral designations from Table VI for both ears as they are higher.  Again, when applying Table VII, Diagnostic Code 6100, level VII for the right ear and level XI for the left ear equates to a 60 percent disability evaluation.  

The July 2011 evaluation showed pure tone thresholds, in decibels, as follows:




HERTZ



1000
2000
3000
4000
AVG.
RIGHT
60
70
75
75
70
LEFT
60
65
75
80
70

Speech audiometry revealed speech recognition ability of 64 percent in the right ear and of 0 percent in the left ear.  The examiner observed that hearing loss was essentially unchanged since 2009.  At the time of the January 2011 VA evaluation, the Veteran was shown to have an average puretone hearing loss in the right ear of 70 decibels, with 64 percent speech discrimination, which translates to a Roman numeral designation of VII for the right ear under Table VI.  The Veteran was shown to have an average puretone hearing loss in the left ear of 70 decibels, with 0 percent speech discrimination, which translates to a Roman numeral designation of XI for the left ear under Table VI. 38 C.F.R. § 4.85, Table VI.  Again, as observed above, based on the puretone threshold averages, it is more beneficial to the Veteran to apply the Roman numeral designations from Table VI for both ears as they are higher.  As noted above, when applying Table VII, Diagnostic Code 6100, level VII for the right ear and level XI for the left ear equates to a 60 percent disability evaluation.  

The March 2012 evaluation showed pure tone thresholds, in decibels, as follows:




HERTZ



1000
2000
3000
4000
AVG.
RIGHT
60
70
75
75
70
LEFT
60
65
75
80
70

It does not appear that speech discrimination testing was done at this time so this evaluation cannot be used for rating purposes.  However, importantly, puretone thresholds remained essentially unchanged from the July 2011 evaluation.  In other words, there was no indication of any worsening since the previous evaluation in July 2011.  

In his October 2012 substantive appeal, the Veteran again argued that his hearing loss had not improved and that he had asked for reevaluation because his hearing had progressively worsened to the point where he wore hearing aids constantly.  He reported that he was unable to engage in conversations or any form of physical recreational or work activities for fear of injuring himself or somebody else.  He also requested extra-schedular consideration for his hearing loss.  
 
Although the claims file was not reviewed at the March 2008 VA examination, it was reviewed by the July 2009 VA examiner, and both of the VA examination reports set forth detailed examination findings in a manner that allows for informed appellate review under applicable VA laws and regulations.  As discussed above, based on subsequent audiograms, the Veteran's hearing loss appears to have remained stable and not increased in severity since the most recent examination in July 2009.  In this regard, the January 2011 examiner observed that the Veteran's hearing was essentially unchanged from 2009 and the subsequent March 2012 audiogram showed the same puretone threshold findings as in January 2011.  Further, the July 2009 examination report addressed the functional effects of the Veteran's hearing loss disability.  Moreover, statements submitted by the Veteran also discussed the functional affects of his bilateral hearing loss.  Thus, the Board finds the July 2009 examination to be sufficient for rating purposes and the functional effects of the Veteran's hearing loss disability are adequately addressed by the record for the Board to consider whether referral for an extra-schedular rating is warranted under 38 C.F.R. § 3.321(b).  See Martinak v. Nicholson, 21 Vet. App. 447 (2007).
  
Initially, after a thorough review of the evidence, the Board finds that the record demonstrates that the Veteran's bilateral hearing loss had improved so as to warrant a rating reduction from 70 percent to 60 percent under Diagnostic Code 6100.  As discussed above, the July 2009 VA examination, which was the basis for the reduction, was complete and thorough.  In this regard, the Veteran's claims file was reviewed and complete medical history was obtained from the Veteran.  The examination clearly addressed the severity of the Veteran's hearing loss disability for rating purposes and showed that the Veteran only met the criteria for a 60 percent rating.  The Board also observes that, at the prior March 2008 VA examination, which was the basis for awarding the 70 percent rating, a conductive component was observed and treatment with a ear-nose-throat specialist was recommended.  Importantly, the examiner indicated that hearing could be improved once resolving the conductive component.  As such, it would be reasonable to assume that the Veteran's hearing loss improved once the conductive component had resolved.  The RO specifically notified the Veteran in the March 2009 rating decision that the 70 percent disability rating was not considered permanent as there was a likelihood of improvement.  Significantly, follow up VA evaluations continued to show that the Veteran's hearing loss only met the criteria for a 60 percent rating.  As such, subsequent treatment records did demonstrate actual improvement in the Veteran's hearing loss.  Accordingly, the preponderance of the evidence supports a finding that the reduction was proper.  

The Board must also determine whether a rating in excess of 70 percent is warranted prior to April 1, 2010, and whether a rating in excess of 60 percent is warranted thereafter.  As discussed above, the VA audiological examination in March 2008 showed that a 70 percent rating was warranted.  At that time, examination results revealed a Roman numeral designation of VIII for the right ear and XI for the left ear.  When applying Table VII, Diagnostic Code 6100, level VIII for the right ear and level XI for the left ear equates to a 70 percent disability evaluation.  There is simply no evidence prior to April 1, 2010, to show that the Veteran met the rating criteria for a rating in excess of 70 percent.  

Moreover, from April 1, 2010, the July 2009 VA examination and subsequent audiological evaluations clearly showed that a 60 percent rating is appropriate.  All of the audiological evaluations during this period showed that the Veteran's hearing loss warranted a Roman numeral designation of VII for the right ear and XI for the left ear.  Again, when applying Table VII, Diagnostic Code 6100, level VII for the right ear and level XI for the left ear equates to a 60 percent disability evaluation.  There is simply no evidence from April 1, 2010, to show that the Veteran met the rating criteria for a rating in excess of 60 percent.  

The Board acknowledges the contentions put forth by the Veteran regarding the impact of his service-connected bilateral hearing loss on his daily activities.  However, while he can describe the effects on his activities, he is not competent to report findings for rating purposes as the evaluation must be done by a state-licensed audiologist.  As noted previously, because assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluation to assign.  Lendenmann, 3 Vet. App. 345; 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100.  Applying the VA audiological test results discussed above, the Board must conclude that the preponderance of the evidence is against entitlement to a rating in excess of 70 percent prior to April 1, 2010 and in excess of 60 percent thereafter.  As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply.  See 38 U.S.C.A. § 5107(b).

Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration.  In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  The application of such schedular criteria was discussed in great detail above.  To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment.  38 C.F.R. § 3.321(b)(1)).

An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable.  Id.  The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations.  Floyd v. Brown, 9 Vet. App. 88 (1996).  The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual.  Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology.  Id. at 115.  If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops.

If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 116.  If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating.  Id.

In Martinak, supra, the Court noted that, unlike the rating schedule for hearing loss, the extraschedular provisions did not rely exclusively on objective test results to determine whether referral for an extraschedular rating was warranted.  The Court 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.  Id. at 455.  In the present case, as noted above, the July 2009 VA examination report contained a description of the Veteran's subjective complaints.  The examiners also specifically noted the functional, including occupational effects, resulting from the Veteran's hearing loss.  In this regard, he determined that the Veteran would not be unemployable due to his hearing loss.  

The Board has considered this evidence in light of Martinak and the provisions of 38 C.F.R. § 3.321(b)(1), but does not find that the Veteran has described functional effects that are "exceptional" or not otherwise contemplated by the currently assigned ratings.  Rather, his description of difficulties with hearing is consistent with the degree of disability addressed by his current evaluation.  In this regard, the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by Veterans with certain degrees and types of hearing disability.  In support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86.  In this regard, the rating criteria for hearing loss were last revised, effective June 10, 1999.  See 64 Fed. Reg. 25206 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these Veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of Veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment.  The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA.  The intended effect of the revision was to fairly and accurately assess the hearing disabilities of Veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17295 (April 12, 1994).  

Consequently, the Board finds that the Veteran's bilateral hearing loss symptomatology is fully addressed by the rating criteria under which his disability is rated.  There are no additional symptoms of his bilateral hearing loss that are not addressed by the rating schedule.  The Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology for his service-connected disability.  The rating schedule is adequate to evaluate the Veteran's disability picture.  Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization.  Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted.  Thun, supra; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996).  

The Board also observes that the Veteran has argued that he retired due to the severity of his hearing loss.  The Court has held that a request for a TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if the disability upon which entitlement to TDIU is based has already been found to be service-connected, as part of a claim for increased compensation.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  However, again, the July 2009 VA examiner clearly found that the Veteran was not unemployable due to his service-connected hearing loss.  Accordingly, there is no need for further analysis with respect to this matter.  

Moreover, during the course of the Veteran's increased rating claim, a claim for TDIU was considered and denied by the RO in the September 2009 rating decision.  The Veteran has not appealed such decision.  Such adjudication reflects the permissive bifurcation of the increased rating claim from the TDIU claim.  See Roebuck v. Nicholson, 20 Vet. App. 307, 315 (2006) (acknowledging that the Board can bifurcate a claim and address different theories or arguments in separate decisions); Holland v. Brown, 6 Vet. App. 443, 447 (1994) (holding that "it was not inappropriate" for the Board to refer a TDIU claim to the RO for further adjudication and still decide an increased-ratings claim).  Moreover, while acknowledging the Rice decision, in Locklear v. Shinseki, 24 Vet. App. 311 (2011), the Court held that it is permissive for VA to address a claim for TDIU independently of other claims, including increased rating and service connection claims.  Id. at 315.  Given the foregoing, the Board concludes that the TDIU claim was separately adjudicated and not perfected for appellate review.  Again, the Board recognizes that the Veteran has filed a new claim in July 2013 for a TDIU based on his other service-connected disabilities, which has been referred to the RO for appropriate action.  

In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 70 percent for his bilateral hearing loss prior to April 1, 2010, and in excess of 60 percent thereafter, to include the propriety of the reduction.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7.


ORDER

A rating in excess of 70 percent prior to April 1, 2010, and in excess of 60 percent disabling thereafter for bilateral hearing loss is denied.

The reduction of the evaluation of bilateral hearing loss from 70 percent to 60 percent, effective April 1, 2010, was proper; the appeal is denied.



____________________________________________
A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs