Citation Nr: 1336912 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 10-39 618 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial compensable evaluation for bilateral hearing loss disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION Please note that 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 had active service from June 1968 to August 1974. This matter came before the Board of Veterans' Appeals (Board) from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran and his wife testified before the undersigned Veterans Law Judge (VLJ) in October 2011. A transcript of the hearing has been associated with the record. The appeal with respect to the issue of a compensable evaluation for bilateral hearing loss disability was remanded in June 2012 and May 2013. It has been returned to the Board for appellate consideration. The Board notes that in an April 2012 statement, the Veteran stated that he was unable to find employment due the side effects of his service-connected prostate cancer. His statement raises the issue of entitlement to a total rating based on unemployability due to service-connected disability (TDIU). This issue has not been adjudicated by the agency or original jurisdiction (AOJ) and is thus referred to the AOJ for appropriate action. FINDING OF FACT Bilateral hearing loss disability is manifested, at worst, by Level I hearing loss in the right ear and Level I hearing loss in the left ear. CONCLUSION OF LAW The criteria for 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. A letter dated in June 2009, prior to the adjudication of the Veteran's claims, discussed the evidence necessary to establish service connection. The Veteran was told how VA would assist him in obtaining identified relevant evidence. This letter also advised the Veteran of the manner in which VA determines disability ratings and effective dates. Subsequent letters advised him of the status of his claim. The Board finds that the content of the notice provided to the Veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. The Board notes that this is a case in which the Veteran is challenging the initial evaluation assigned following the grant of service connection for his low back disability. In Dingess, the Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. With respect to VA's duty to assist, VA treatment records have been obtained and associated with the record. VA examinations have been conducted. The Board finds that the examinations are adequate in that they were conducted by neutral, skilled providers who reviewed the record, interviewed the Veteran, and performed appropriate physical examinations prior to providing their conclusions. 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 (2013). The Court also noted that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow deficient the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in an examination. The Veteran has not asserted that there is any deficiency in his VA examinations. A VA outpatient record includes an August 2011audiogram that is presented in graphical format. The Court recently explored the Board's ability to interpret such findings in Ponder v. Shinseki, 2010 WL 4241571 (Oct. 28, 2010). In Ponder, the Court found error in the Board's assertion that it could not interpret graphical audiometric findings. Specifically, the Court noted that: The Board cited to Kelly v. Brown, 7 Vet. App. 471 (1995) for the proposition that "the Board may not interpret graphical representations of audiometric data." R. at 11. This, however, is a misstatement of Kelly. There, the Court determined that the Court could not interpret the results of an audiograph because interpretation required a factual finding, which is not the role of the Court in the first instance. Kelly, 7 Vet. App. at 474. The Board, however, is empowered to make factual findings in the first instance. See Ponder, supra, at *2. The Board observes that Ponder is a single judge memorandum decision and thus has no precedential weight. However, the decision may be cited "for any persuasiveness or reasoning it contains." See Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992). Accordingly, based on the reasoning of Ponder, the Board will proceed with interpreting the audiometric results dated in August 2011. The Veteran also was afforded a hearing before the undersigned during which he presented oral argument in support of his appeal. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ or Decision Review Officer who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the evidence necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the evidence necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) . 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. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, 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. In every instance where the schedule does not provide a noncompensable evaluation for a diagnostic code, a noncompensable evaluation will be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The Board observes that in cases where the original rating assigned is appealed, consideration must be given to whether a higher rating is warranted at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). The Board has considered whether further staged ratings are warranted but has determined that the disability has not changed and that a uniform evaluation is applicable. 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 (Maryland CNC), 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. On VA examination in September 2009, the Veteran reported that he had difficulty understanding speech. Audiometric testing resulted in the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 25 60 65 LEFT 25 25 15 60 65 Speech recognition scores were 100 percent bilaterally. An August 2011 VA outpatient record notes that the Veteran was seen for an audiological consultation. He complained of difficulty understanding speech, especially with background noise. The results of the audiogram, in graphic form, are associated with the claims file. They show the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 35 60 65 LEFT 25 25 40 65 70 The audiologist noted that word recognition was good, with scores of 92 percent bilaterally. On VA examination in August 2012, the Veteran reported that he could not hear when multiple people were talking. He noted that he had problems on the telephone. Audiometric testing revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 35 60 60 LEFT 25 25 35 65 65 Speech discrimination scores were 96 percent for the right ear and 92 percent for the left. An additional VA examination was carried out in July 2013. The Veteran reported difficulty hearing without his hearing aids. He indicated that he had trouble hearing in the presence of background noise. Audiometric testing revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 35 65 65 LEFT 25 25 35 65 70 Speech recognition scores were 96 percent bilaterally. The Board observes that application of the regulation to the findings of the on each VA audiometric evaluation results in numeric designations of I for the right ear and I 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). As such, the Board finds that at worst, the Veteran's hearing loss disability is appropriately evaluated as noncompensably disabling. The Board does not doubt the sincerity of the Veteran's assertions that his hearing loss is of such severity that it warrants compensation. However, the more probative evidence consists of that prepared by neutral skilled professionals, and such evidence demonstrates that compensable evaluation is not warranted. The evidence preponderates against a finding that an increased evaluation is warranted. As such, the appeal is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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). In this regard, the Board finds that there has been no showing by the Veteran that the service- connected hearing loss disability has resulted in marked interference with employment or necessitated frequent periods of hospitalization, or otherwise rendered impractical the application of the regular rating schedule standards. The objective findings associated with audiometric testing do not support a compensable evaluation. Furthermore, 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 notes 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 loss disability. 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 an initial compensable evaluation for bilateral hearing loss disability is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs