Citation Nr: 1336203 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 11-06 090 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from March 1951 to March 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 and May 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, which granted service connection for left ear hearing loss and right ear hearing loss, respectively. The Veteran appealed with respect to the propriety of the initially assigned noncompensable rating for his bilateral hearing loss. In November 2012, the Veteran testified before the undersigned Veterans Law Judge sitting at the RO. A transcript of the hearing has been associated with the claims file. The case was previously remanded by Board in January 2013 and August 2013 for additional development and now returns for further appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless, electronic claims processing system. There is also a second paperless, electronic (Virtual VA) claims file associated with the Veteran's appeal, which contains VA treatment records dated through June 2013. There records were considered by the agency of original jurisdiction (AOJ) in the July 2013 and September 2013 supplemental statements of the case. This appeal was also 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. 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). FINDING OF FACT For the entire appeal period, the Veteran's bilateral hearing loss is manifested by no worse than Level I hearing in both ears. CONCLUSION OF LAW The schedular criteria for an initial compensable disability rating for bilateral hearing loss are not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100, and Tables VI, VII (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the 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. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These notice requirements apply to all elements of a claim, including the degree and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Proper VCAA notice must be provided prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). The Board observes that the Veteran has appealed with respect to the propriety of the initially assigned rating for his bilateral hearing loss disability from the original grant of service connection. VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). In this case, the Veteran's claim for service connection for his bilateral hearing loss disability was granted and an initial rating was assigned in the September 2010 rating decision on appeal. Therefore, as the Veteran has appealed with respect to the initially assigned rating, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Relevant to the duty to assist, the Veteran's service treatment records as well as post-service VA treatment records dated through June 2013 have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. Additionally, the Veteran was afforded VA examinations in conjunction with the claim on appeal in June 2010, May 2012, and September 2013, and there is no allegation or indication that the VA examinations are not adequate for rating purposes. Moreover, the Board finds that the examinations are adequate in order to evaluate the Veteran's service-connected bilateral hearing loss disability as they include an interview with the Veteran, to include a discussion of the functional effects resulting from his hearing loss, and a full audiological examination, which addresses the relevant rating criteria. In this regard, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that, relevant to VA audiological examinations, 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. In the instant case, the June 2010 VA examiner noted that the Veteran had difficulty hearing as good as he once did, especially when his spouse is in another room. The May 2012 VA examiner observed that the Veteran indicated that he could not hear his spouse speaking to him. Finally, the September 2013 VA examiner noted that the Veteran had difficulty hearing his spouse and when background noise is present. Therefore, the Board finds that the VA examinations fully described the functional effects caused by the Veteran's bilateral hearing loss disability in accordance with Martinak, supra. As such, the Board finds that the examinations of record are adequate to adjudicate the Veteran's initial rating claim and no further examination is necessary. As noted in the Introduction, in January 2013 and August 2013, the Board remanded the case for additional development, to include obtaining updated VA treatment records and affording the Veteran a VA examination so as to determine the current nature and severity of his bilateral hearing loss. As discussed in the preceding paragraphs, VA treatment records dated through June 2013 have been obtained and the Veteran was afforded a VA examination in September 2013 so as to determine the current nature and severity of his bilateral hearing loss in accordance with the January 2013 and August 2013 remand directives. Therefore, the Board finds that the AOJ has substantially complied with the January 2013 and August 2013 remand directives such that 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). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis The Veteran is service-connected for bilateral hearing loss, evaluated as noncompensably disabling pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100, effective May 31, 2006. He claims that such is more severe than as reflected by the currently assigned noncompensable rating and, therefore, he is entitled to a higher initial rating. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 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. Fenderson v. West, 12 Vet. App. 119 (1999). Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, Table VIA, in exceptional cases as described in 38 C.F.R. § 4.86 , and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. Applying the criteria to the facts of this case, the Board finds that the criteria for an initial compensable rating for bilateral hearing loss have not been met for any time during the appeal period. In this regard, for the entire appeal period, the Veteran's bilateral hearing loss is manifested by no worse than Level I hearing in both ears. The evidence pertinent to this appeal includes VA examination reports dated June 2010, February 2012, and September 2013, as well as VA outpatient treatment records and statements submitted by the Veteran in support of this appeal. The VA outpatient treatment records show the Veteran has sought treatment for bilateral hearing loss, tinnitus, and other related symptoms since 2006. Such records show that the Veteran has manifested mild to moderately severe sensorineural hearing loss bilaterally throughout this appeal. See VA treatment records dated March 2006, November 2006, and November 2007. While such treatment records contain a diagnosis of sensorineural hearing loss based upon audiological examination, the specific pure tone thresholds from each examination are not included in the record. Word recognition scores in March 2006 and November 2007 were noted to be stable and excellent bilaterally at 100 percent. However, absent pure tone thresholds, the Board finds that the audiometric evaluations conducted in March 2006, November 2006, and November 2007 (as reflected in VA treatment records dated the same dates) are not considered adequate to evaluate the Veteran's hearing loss disability, as the severity of the Veteran's bilateral hearing loss impairment cannot be determined from those evaluations. A June 2010 VA audiometric examination revealed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 AVG. RIGHT 15 10 20 35 20 LEFT 20 20 35 55 33 The Maryland CNC test revealed speech recognition ability of 96 percent bilaterally. Based on mechanical application of the rating criteria, the right ear warrants a Level I numerical designation, and the left ear warrants a Level I numerical designation according to Table VI. Such designations result in a noncompensable rating under Table VII. See 38 C.F.R. § 4.85, Diagnostic Code 6100. A May 2012 VA audiometric examination revealed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 AVG. RIGHT 20 15 25 45 26 LEFT 20 25 45 60 38 The Maryland CNC test revealed speech recognition ability of 100 percent bilaterally. Based on mechanical application of the rating criteria, the right ear warrants a Level I numerical designation, and the left ear warrants a Level I numerical designation according to Table VI. Such designations result in a noncompensable rating under Table VII. See 38 C.F.R. § 4.85, Diagnostic Code 6100. A September 2013 VA audiometric examination revealed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 AVG. RIGHT 20 20 25 50 29 LEFT 25 30 50 60 41 The Maryland CNC test revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left ear. Based on mechanical application of the rating criteria, the right ear warrants a Level I numerical designation, and the left ear warrants a Level I numerical designation according to Table VI. Such designations result in a noncompensable rating under Table VII. See 38 C.F.R. § 4.85, Diagnostic Code 6100. The Board has also considered the Veteran's service-connected sensorineural hearing loss under 38 C.F.R. § 4.86 for exceptional patterns of hearing impairment. However, the audiometric evidence of record does not show that the Veteran's bilateral hearing loss fits the requirements of an unusual pattern of hearing impairment, as pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz are not 55 decibels or more, and the pure tone threshold is not 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. Therefore, 38 C.F.R. § 4.86 is not for application in this case. The Board acknowledges the Veteran's reports of difficulty hearing people, including his spouse; difficulty hearing when background noise is present; and that his hearing has decreased to the point that he needs hearing aids. To the extent that the Veteran contends that his hearing loss is more severe than currently evaluated, the Board observes that the Veteran, while competent to report symptoms such as difficulty hearing speech and when background noise is present, he is not competent to report that his hearing acuity is of sufficient severity to warrant a 10 percent or greater evaluation under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to have. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Despite the foregoing, the Board acknowledges the Veteran's reports of difficulty hearing people, including his spouse; difficulty hearing when background noise is present; and that his hearing has decreased to the point that he needs hearing aids. Even after considering such contentions as to the effects of the disability on his daily life, the Board finds that the criteria for a compensable evaluation are not met. See Lendenmann, supra (assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered). The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected bilateral hearing loss; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. 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. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto 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. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected bilateral hearing loss with the established criteria found in the rating schedule. The Board notes that the Veteran has described the functional impairment he experiences as a result of sensorineural hearing loss, to include difficulty hearing people, including his spouse, and difficulty hearing when background noise is present. However, 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). Accordingly, the Board finds that functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria. 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. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the Veteran does not contend, and the evidence does not show, that his bilateral hearing loss renders him unemployable. In this regard, while he is not working and VA examiners have noted that the Veteran's bilateral hearing loss impacts the ordinary conditions of his daily life, including his ability to work, the evidence does not show that such disability renders him unemployable. Therefore, the Board finds that the issue of entitlement to a TDIU is not expressly raised by the Veteran or reasonably raised by the record and, consequently, further consideration of such is not necessary. The Board has also considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for an initial compensable rating for his bilateral hearing loss. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his initial rating claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER An initial compensable rating for bilateral hearing loss is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs