Citation Nr: 1337818 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 12-13 353 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran had active service in the Air Force from October 1965 to January 1969. The matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, that implemented a December 2010 Board decision and assigned a noncompensable rating for bilateral hearing loss. The Veteran filed a notice of disagreement in April 2012 and was provided with a Statement of the Case in May 2012. The Veteran perfected his appeal with a May 2012 VA Form 9. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT During the entire pendency of the appeal, the numeric designation of hearing impairment based on puretone threshold average and speech discrimination did not result in a compensable rating. CONCLUSION OF LAW The criteria for a compensable rating 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 and VII, Diagnostic Code 6100; 4.86 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist the Veteran in substantiating his claims 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). The Veteran was provided with the requisite VCAA notice on the underlying service connection issue in January 2010. The Veteran's claim for a higher rating for bilateral hearing loss arises from a disagreement with the initial evaluation that was assigned following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Here, the Veteran's statements, his service treatment records, and post-service private and VA records have been associated with the claims folder. Additionally, the Veteran has not identified any outstanding records that have not been requested or obtained. The Veteran was afforded a VA examination in January 2013. The Board finds that the VA examination was adequate because the examiner conducted a clinical evaluation, reviewed the Veteran's medical history, and described the Veteran's bilateral hearing loss in sufficient detail so that the Board's evaluation is an informed determination. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Moreover, the January 2013 VA audiological examination specifically includes the Veteran's reported functional effects of his bilateral hearing loss, namely his difficulty hearing in crowds. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) (holding 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). The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet.App. 384 (1993). Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West 12 Vet. App. 119, 126 (1999). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). In cases for which the evaluation of hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Hearing loss ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with average hearing thresholds determined by puretone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 cycles per second. "Puretone threshold average" is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz divided by four. This average is used in all cases (including those in §4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85, DC 6100. The rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. 38 C.F.R. § 4.85. The horizontal rows in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect. See 38 C.F.R. §§ 4.85, 4.86. The regulations also provide that in cases of exceptional hearing loss, i.e. when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, the Roman numeral designation will be determined for hearing impairment, separately, from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86. A Roman numeral designation will also be determined from either Table VI or Table VIa, whichever results in the higher numeral, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. That numeral will then be elevated to the next higher Roman numeral. In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. Analysis On his October 2009 claim, the Veteran reported that his hearing loss had resulted in a loss of business as his clients grew impatient when he asked them to repeat themselves. The Veteran also reported that he was currently doing legal and real estate work. A November 2009 private treatment record shows that the Veteran's right ear had pure tone thresholds of 20, 25, 35, and 30 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively as interpreted by Dr. C.F. The left ear had pure tone thresholds of 20, 20, 30, and 30 decibels at these same frequencies as interpreted by Dr. C.F. The average threshold for the right ear was 28 decibels and for the left ear was 25 decibels. The Veteran had 96 percent speech recognition for the right ear and 96 percent for the left ear utilizing the Maryland CNC test. This translates to level I hearing for the right ear and level I for the left ear which, when applied to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable evaluation. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Veteran was afforded a VA audiological examination in January 2013. The Veteran reported that his hearing loss impacted his ordinary conditions of daily life in that he had problems hearing in crowds. The right ear had pure tone thresholds of 10, 15, 35, and 25 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. The left ear had pure tone thresholds of 10, 15, 20, and 40 decibels at these same frequencies. The average threshold for the right and left ear was 21. The Veteran had 96 percent speech recognition for the right ear and 98 percent for the left ear. This translates to level I hearing for the right ear and level I for the left ear which, when applied to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable evaluation. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's report of experiencing increased hearing difficulty in crowds and needing to ask his clients to repeat themselves. The Board further acknowledges that the Veteran is competent to report his hearing loss symptomatology. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Moreover, the Board finds that the Veteran's reports of his symptomatology are credible, as his reported symptomatology has remained consistent over time. However, the Board notes that the rating criteria for hearing impairments is designed to consider the Veteran's diminished hearing acuity, and as outlined above, the assignment of a disability evaluation on a schedular basis is a purely mechanical process based on audiometric test results. As such, the Board concludes that the Veteran's assigned schedular evaluation is appropriate. The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluation for the service-connected disability is 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 Veteran'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 the 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 VA 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 under 38 C.F.R. § 3.321(b)(1) (2013). Here, the symptoms associated with the Veteran's service-connected bilateral hearing loss include difficulty hearing in crowds and the need to ask people to repeat themselves. The Board finds that the Veteran has not described exceptional or unusual features associated with his hearing loss. There is no doubting the Veteran's symptoms cause some impairment in his functioning and capacity. However, the extent of his impairment is adequately contemplated by the rating criteria, which reasonably describe the effects of his disability. 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 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. Therefore, the Veteran's struggle to comprehend verbal conversations and other noises is a factor contemplated in the regulations and rating criteria as defined. Accordingly, the Board determines that the Veteran's complaints of hearing difficulty have been considered under the numerical criteria set forth in the rating schedule. In short, the rating criteria reasonably describe the Veteran's disability levels and symptomatology. As the Board finds that the Veteran's disability picture is contemplated by the rating schedule, the inquiry ends and the Board need not consider whether the disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Accordingly, referral for consideration of an extraschedular rating is not warranted. Finally, the Court has held that entitlement to a TDIU is an element of all appeals for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. In this case, the Board finds that a claim for a TDIU was not expressly raised by the Veteran or reasonably raised by the record. While the Veteran has reported that his hearing loss has caused him to lose clients, the Veteran appears to be still employed doing legal and real estate work. Moreover, the Veteran does not allege nor does the evidence suggest that he is unemployable due to his service-connected bilateral hearing loss. Based on the evidence of record, the Board finds that further consideration of a TDIU is not warranted. ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs