Citation Nr: 1337308 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 08-06 907 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an initial compensable rating for left ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A.P. Armstrong, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1998 to April 2001, October 2001 to October 2002, and from February 2004 to April 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which denied a compensable rating. In November 2011, the Board considered this issue and remanded the case for further development, which was completed. The issue of right ear hearing loss was raised by the record but not adjudicated by the Agency of Original Jurisdiction (AOJ). In the November 2011 decision, the Board referred that issue to the AOJ; however, it does not appear that any steps have been taken in that adjudication. Therefore, this decision again refers the issue of right ear hearing loss to the AOJ for appropriate action. FINDINGS OF FACT Throughout the rating period on appeal, the Veteran has had no more than Level III hearing impairment in his left ear, and there is no indication that any functional effects due to such disability resulted in an exceptional or unusual disability picture to warrant referral for extra-schedular consideration. CONCLUSION OF LAW The criteria to establish entitlement to an initial compensable rating for left ear hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.85-4.86, Diagnostic Code (DC) 6100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran claimed service connection for left ear hearing loss, which was granted by the RO and assigned a non-compensable rating. On appeal, the Veteran asserts that his hearing loss disability merits a compensable rating. In November 2011, after a hearing with the undersigned Veterans Law Judge, the Board issued a decision remanding the case to the RO for another examination. The remand directives have since been completed satisfactorily. I. Procedural Duties 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). VCAA notice must be provided prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). In September 2006, the RO sent a letter to the Veteran providing him notice, which satisfied the requirements of the VCAA. See 38 U.S.C.A. § 5103; 38 C.F.R. §3.159(b). This letter was sent prior to initial adjudication of his claims for service connection. The Veteran was informed of what evidence and information he needed to substantiate his claims, which VA would seek to obtain, which he could provide, and how ratings and effective dates would be determined, pursuant to Dingess/Hartman. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary. 38 C.F.R. § 3.159. All pertinent, identified medical records have been obtained and considered. The Veteran was afforded VA examinations in July 2005, October 2006, and February 2012 to evaluate his left ear hearing loss. These examinations address the pertinent rating criteria and there is no argument or indication that they are inadequate. The Veteran had an opportunity to submit additional evidence and provided statements and medical evidence in support of his claim. The Board has carefully reviewed the record and determines there is no available, pertinent outstanding evidence. As VA satisfied its duties to notify and assist the Veteran, there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and the Veteran will not be prejudiced as a result of the Board's adjudication of his claims. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). Disability ratings for hearing loss are assigned based on the results of controlled speech discrimination tests combined with the results of puretone audiometry tests. See 38 C.F.R. §§ 4.85-4.87. An examination for VA rating purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test, specifically, the Maryland CNC test, and a puretone audiometric test. 38 C.F.R. § 4.85(a). Further, disability ratings for hearing impairment are assigned through a structured formula, i.e., a mechanical application of the rating schedule to numeric designations that are assigned after audiometric evaluations have been rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Board first notes that the Veteran does not have an exceptional pattern of hearing impairment, as defined by 38 C.F.R. § 4.86. Further, all available tests include valid puretone and speech discrimination scores. As such, Table VI applies. See 38 C.F.R. §§ 4.85 and 4.86. First, a Roman numeral designation of I through XI is assigned for the level of hearing impairment in each ear. Table VI is used to determine a Roman numeral designation based on a combination of the speech discrimination percentage and the average puretone threshold, or the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. After a Roman numeral designation has been assigned for each ear, Table VII is used to determine the compensation rate by combining such designations for hearing impairment in both ears. 38 C.F.R. § 4.85. In the present case, the Veteran's hearing loss disability does not warrant a compensable rating. See 38 C.F.R. § 4.85 DC 6100. Along with VA examinations conducted in July 2005, October 2006, and February 2012, the record also includes audiological testing results from VA treatment in August 2005 and a private screening in May 2006. The results of the February 2012 VA hearing evaluation showed the most severe hearing loss and thus will be used to rate his disability. (A May 2006 private audiologic report shows a marginally higher puretone average at the relevant frequencies, but this report does not contain speech recognition findings and thus cannot be utilized for rating purposes. In any event, the puretone threshold average of 37.5 would amount to Level I hearing under Table Via, which when plotted in Table VII with a nonservice-connected right ear would result in a noncompensable rating.) In February 2012, the Veteran's puretone threshold average for his left ear was 35 decibels. His speech discrimination score under the Maryland CNC test was 80 percent. When applied to Table VI, the Veteran's left ear scores of 35 decibels and 80 percent result in a Level III designation of impairment. The Veteran's left ear Level III designation combined with his non-service connected right ear results in a zero percent disability rating under Table VII. The Board has considered the Veteran's lay statements regarding his hearing loss, including those made during the May 2011 Board hearing and in statements in support of his claim. In such statements, he reported frequently having to turn his head to hear with his right ear and that his hearing loss prevented him from becoming a firefighter. The Veteran is competent to report these symptoms of his disability because they are observable by his own senses. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Nevertheless, VA's rating of hearing impairment is based on specific measurements that must be gathered by a state-licensed audiologist using specific tests, as discussed above. As such, the medical evidence and test results are more probative and outweigh the Veteran's subjective reports of the degree of disability, as they directly address the rating criteria for the Veteran's hearing loss. The results of the audiological tests from VA examinations, VA treatment, and private screening from 2005 to 2012 show a similar level of disability. Therefore, staged ratings are not appropriate, as the manifestations of the disability have remained relatively stable throughout the course of the appeal. See Fenderson, 12 Vet. App. at 126-127. The Board has considered whether this case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). However, this case does not present such an exceptional or unusual disability picture that it would be impracticable to apply the schedular standards, and referral is unnecessary. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Rather, the manifestations of the Veteran's hearing loss symptoms are fully contemplated by the schedular rating criteria. Specifically, he has normal sensorineural hearing loss and does not have an unusual or exceptional disability picture. Therefore, the rating schedule is adequate to evaluate his disability picture and thus extraschedular referral is not warranted here. The Veteran has not directly made or inferred a claim for a total disability rating based on individual unemployability (TDIU) due to his service-connected disabilities. See Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (Fed. Cir. 2009); see also Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Although the record indicates that he has not been able to find work as a firefighter, the Veteran is currently working, plans to continue to do so in the future, and does not allege he is unemployable. Therefore, consideration of TDIU is not warranted in this case. In sum, the preponderance of the evidence is against a compensable rating for left ear hearing loss. As such, the benefit of the doubt doctrine does not apply, and the Veteran's claim must be denied. 38 C.F.R. § 4.3. (CONTINUED ON NEXT PAGE) ORDER An initial compensable rating for left ear hearing loss is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs