Citation Nr: 1336754 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 09-41 982 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a compensable rating for bilateral hearing loss disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION 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. 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). The Veteran served on active duty from October 1944 to June 1946. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The appeal was remanded in July 2013 for due process concerns. It has been returned to the Board for appellate consideration. FINDING OF FACT Bilateral hearing loss disability is manifested, at worst, by Level II hearing loss in the right ear and Level IV hearing loss in the left ear. CONCLUSION OF LAW The criteria for a compensable evaluation for bilateral hearing loss disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, Tables VI, VIA, VII; 4.86; Diagnostic Code 6100 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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 of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. In April 2008 the Veteran was advised of the evidence necessary to support his claim for increase. He was invited to submit or identify evidence supportive of his claim. The evidence of record was listed and the Veteran was advised of the allocation of duties between himself and VA with respect to the identification and procurement of evidence. This letter also addressed the manner in which VA determines disability ratings and effective dates. In July 2009 the Veteran was provided with the specific diagnostic criteria under which his hearing loss disability is evaluated. In June 2012 the Veteran was asked to complete an authorization to release information so that additional records and information could be obtained from his private audiological provider. The Veteran did not thereafter authorize the release of any additional information and evidence. With respect to VA's duty to assist, relevant VA and private records have been obtained and associated with the record. The Veteran has been afforded VA examinations. The Board finds that the examinations were adequate in that they were performed by skilled providers who conducted audiological evaluations and provided sufficient information so the Board can render an informed determination. While the examination reports indicated that the claims file had not been provided, the Board does not find that such makes the examinations inadequate, as the purpose of the examination was to report the clinical findings pertaining to the service-connected disability, which was accomplished by the examiner. The Board observes that in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2012). Here, the examiners included a discussion of the effects of the Veteran's hearing loss, and the record otherwise includes the Veteran's statements concerning its effects. The Veteran has not asserted that there is any deficiency in the VA examinations. The Veteran has not otherwise identified any additional evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. In light of the above, the Board is satisfied that VA has complied with the duty to notify and assist requirements of the VCAA and the implementing regulations. Thus, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Disability evaluations are determined by the application of a schedule of ratings, which is based on average industrial impairment. 38 U.S.C.A. § 1155. A proper rating of the Veteran's disability contemplates its history, 38 C.F.R. § 4.1, and must be considered from the point of view of a Veteran working or seeking work. 38 C.F.R. § 4.2. 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1, 4.2 (2013); see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. In this case the Board has concluded that the disability has not significantly changed and that a uniform evaluation is warranted for the period considered. Evaluations of hearing loss range from noncompensable to 100 percent, based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. 38 C.F.R. § 4.85(a) and (d) (2013). To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2013). 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. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). When the pure tone thresholds at the four specified frequencies (1000, 2000, 3000, and 4000 hertz) are 55 decibels or more, or when the pure tone thresholds are 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz, 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 highest Roman numeral. 38 C.F.R. § 4.86. The evidence demonstrates that the appellant did not have a threshold of 55 decibels or more at the indicated frequencies or a puretone threshold of 30 or less at 1000 Hertz and 70 or more at 2000 Hertz. As such § 4.86 does not apply. Examinations are conducted using the controlled speech discrimination tests, together with the results of the puretone audiometry test. The horizontal lines in table VI, referenced in 38 C.F.R. § 4.85, represent nine categories of percent of discrimination based upon the controlled speech discrimination test. The vertical columns in table VI represent nine categories of decibel loss based upon the puretone audiometry test. The numeric designation of impaired efficiency (I through XI) will be determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to puretone decibel loss; thus, for example, with a percent of discrimination of 70 and average puretone decibel loss of 64, the numeric designation is V for one ear. The same procedure will be followed for the other ear. The numeric designations are then applied to Table VII, also referenced in 38 C.F.R. § 4.85, to determine the Veteran's disability rating. The Veteran underwent audiologic testing by VA in March 2008. However, that testing did not include a report of puretone thresholds at 3000 Hertz; as such, the results of such testing are not adequate for the purpose of rating the Veteran's hearing loss disability. Moreover, pursuant to a January 2013 addendum, a VA audiologist reported that the Maryland CNC speech discrimination test was not used. A VA audiological examination was conducted in May 2008. The Veteran indicated his belief that his hearing had decreased since a previous September 2005 examination. Diagnostic testing resulted in the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 Average Right 20 20 50 55 50 44 Left 20 25 65 65 55 53 Speech discrimination scores were 96 percent for the right ear and 88 percent for the left. A private record indicates that audiometric testing was carried out in May 2008, two days following the above VA examination. The following puretone thresholds were elicited: HERTZ 500 1000 2000 3000 4000 Right 35 30 60 60 65 Left 40 45 75 75 70 Unfortunately, it is unclear whether this testing included Maryland CNC Speech testing. As noted above, the Veteran was given the opportunity to complete a release so that additional information could be obtained from the private provider, but he did not respond. As such, the results of this testing cannot be used to evaluate the Veteran's hearing loss under VA standards because it is unknown whether Maryland CNC Speech testing was conducted. VA treatment records reflect that audiometric testing was performed in June 2010. Puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 Average Right 15 25 50 50 50 44 Left 15 30 65 60 65 55 Speech recognition scores were 96 percent for the right ear and 64 percent for the left. An additional VA examination was carried out in October 2011. Puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 Average Right 20 30 50 50 50 45 Left 20 35 65 65 60 56 Speech recognition scores were 92 percent for the right ear and 80 percent for the left. In January 2013, a VA audiologist reviewed the results of the March 2008 and June 2010 audiograms. The audiologist stated that the results of the June 2010 audiogram were consistent with the March 2008 results with the exception of the speech discrimination score in the left ear. He indicated that those results did not include the CNC word lists and that speech discrimination could not be used for rating purposes. As such, the results of the June 2010 audiometry will be applied to Table VIa. See 38 C.F.R. § 4.85(c). The Board observes that application of the regulation to the findings of the on the May 2008 audiometric evaluation results in a numeric designation of I for the right ear and II for the left. A noncompensable evaluation is warranted when those values are applied to Table VI. 38 C.F.R. § 4.85, 4.85, Diagnostic Code 6100 (2013). The audiometric findings of the June 2010 testing result in numeric designations of II for the right ear and III for the left. This results in a noncompensable rating when those values are applied to Table VIa. Id. The audiometric findings of the November 2011 examination result in a numeric designation of I for the right ear and IV for the left; such results in a noncompensable evaluation when those values are applied to Table VI. Id. Accordingly, the Board concludes that the current noncompensable evaluation is appropriate. The potential application of various provisions of Title 38 of the Code of Federal Regulations has also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). The Court of Appeals for Veterans Claims has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App 111, 115-16 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran'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 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 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 extraschedular rating. The Veteran has reported that background noise is uncomfortable, that he has difficulty understanding with background noise, that he wears a hearing aid, and that his hearing loss interferes with his activities. With regard to whether the schedular criteria for hearing loss are adequate in this case, although the assignment of disability evaluations is based on a mechanical application of numerical tables to the numerical findings upon audiological evaluation, the Board finds that the numerical criteria in the rating schedule contemplate the impairment of function that is experienced by the Veteran. Specifically, the Board determines that 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 this regard, the Veteran's difficulty hearing is contemplated by the schedular criteria. In support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86. The rating criteria for hearing loss were last revised, effective June 10, 1999. See 64 Fed. Reg. 25,200 (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. Id. 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. 17,295 (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. The Board acknowledges the Veteran's argument that his bilateral hearing loss disability warrants a compensable evaluation. However, the Board has determined that the Veteran's complaints of hearing difficulty have been considered under the numerical criteria set forth in the rating schedule. The schedular rating criteria adequately contemplate the Veteran's symptomatology, and the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet.App. 337 (1996); Shipwash v. Brown, 8 Vet.App. 218, 227 (1995). ORDER Entitlement to a compensable evaluation for bilateral hearing loss disability is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs