Citation Nr: 1337870 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 10-30 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a compensable evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from November 1965 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied a compensable evaluation for his bilateral hearing loss. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in September 2012; a transcript of that hearing is associated with the claims file. This case was initially before the Board in December 2012, when the Board awarded a 70 percent disability rating for posttraumatic stress disorder (PTSD). The December 2012 Board decision additionally remanded the increased evaluation claim for bilateral hearing loss and a claim of entitlement for a total disability rating for individual unemployability due to service-connected disabilities (TDIU) for further development. During the pendency of that remand, entitlement to TDIU was granted in an April 2013 rating decision. The Board finds that the benefit sought on appeal as to that issue has been awarded and there has been no indication that the Veteran disagrees with the April 2013 decision. Consequently, that leaves on appeal the increased evaluation claim for bilateral hearing loss. FINDINGS OF FACT The evidence of record does not demonstrate audiological results or any other functional impacts of the Veteran's hearing loss that would demonstrate entitlement to a compensable evaluation for bilateral hearing loss. Throughout the appeal period, neither ear has shown an exceptional pattern of hearing loss and the hearing acuity levels obtained for both ears never exceeds Level III. CONCLUSION OF LAW The criteria for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.85, 4.86, Diagnostic Code 6100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in November 2008 that provided information as to what evidence was required to substantiate the claim herein decided and of the division of responsibilities between VA and a claimant in developing the claim. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent post-service treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at a September 2012 hearing before the undersigned. The Board has reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the claim. The Board acknowledges that this claim was the subject of a December 2012 remand order, which instructed that the Veteran's ongoing VA treatment records be obtained, that he be asked for information regarding private treatment that he may have received for his bilateral hearing loss, and for a VA audiological examination to be afforded to him. VA treatment records through March 2013 are of record, and the Veteran underwent a VA audiological examination in March 2013. In January and February 2013, the Veteran was sent letters asking for information regarding any treatment he may have received for his hearing loss; no response was received. Therefore, the Board finds that its remand order has been substantially complied with, and it may proceed to adjudicate the merits of this case. See Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2013); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2013); assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2013); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2013). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider a veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Id.; Powell v. West, 13 Vet. App. 31, 35 (1999). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on 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 Hertz (Hz). To evaluate the degree of disability from bilateral service-connected defective hearing, the Rating Schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2013). The evaluation of hearing impairment applies a rather structured formula that is a mechanical application of the rating schedule to numeric designations after audiology evaluations are obtained. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under 38 C.F.R. § 4.86, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels or more, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86(a) (2013). Further, when the average puretone threshold is 30 decibels at 1000 Hz, and 70 decibels or more at 2000 Hz, the rating specialist will determine the Level 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 higher Level. 38 C.F.R. § 4.86(b) (2013). As an initial matter, the Board notes that the Veteran was service connected for his bilateral hearing loss in a May 2007 rating decision, at which time he was assigned a noncompensable evaluation for that disability, effective January 24, 2007-the date of he filed his claim for service connection. He submitted a timely notice of disagreement with that assigned evaluation in July 2007; a statement of the case was issued with regards to his increased evaluation claim for bilateral hearing loss in November 2007. The Veteran failed to submit a substantive appeal, VA Form 9, with respect to that issue; accordingly, the initial evaluation became final. However, in October 2008, the Veteran submitted a claim for TDIU, which the RO construed as a claim for increased evaluation for his bilateral hearing loss as well. The Board has therefore characterized this as a claim for increase, rather than an appeal of the initial evaluation. The Board is cognizant that a higher evaluation may be assigned within the one year prior of the Veteran's claim for increase in this case, so long as it is factually ascertainable that an increase in evaluation is warranted during that time. See 38 C.F.R. § 3.400(o) (2013). The Board has undertaken review of the claim with this in mind. On appeal, the Veteran has indicated that he has difficulty understanding speech and that he will sometimes answer incorrectly due to not hearing others correctly. He also stated in his September 2012 hearing that his wife has accused him of "selective hearing," and he testified that he sometimes cannot hear his wife when she talks to him. The Veteran underwent a VA examination in April 2007-on which his initial evaluation was based. The Veteran reported that he had difficulty understanding speech due to his hearing loss and tinnitus. He further indicated that he had an inability to follow conversation in quiet and noisy environments. The Veteran underwent audiometric testing which revealed the following results: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Speech Discrimination RIGHT 25 25 30 30 45 32.5 88% LEFT 25 25 30 35 40 33.75 76% The examiner noted that the Veteran's functional impairments due to his bilateral hearing loss were difficulty understanding speech in quiet, noise, on the television and on the telephone. The above results are not productive of a pattern of exceptional hearing loss for either of the Veteran's ears during this examination, and thus, the Board will not use Table VIa in evaluating hearing loss. See 38 C.F.R. § 4.86. The results under Table VI equate to Level II hearing acuity for the right ear and Level III hearing acuity for the left ear. See 38 C.F.R. § 4.85. Such findings are commensurate with no more than a noncompensable evaluation. Table VII. The Veteran underwent a VA audiological examination in November 2008. He reported at that time that he could not hear sounds or people talking to him, and that he often did not hear other people talking to him. He also indicated he was not receiving any treatment for his condition. The Veteran underwent audiometric testing which revealed the following results: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Speech Discrimination RIGHT 25 30 30 30 40 33 80% LEFT 25 30 35 40 50 39 76% The examiner noted that the Veteran had subjective complaints of difficulty hearing; she noted that he had mild to moderate sensorineural hearing loss bilaterally. She further noted that the effect of the condition on the Veteran's daily activities was that he experienced difficulty hearing environmental sounds accurately and had communication problems on a regular basis. The above results are not productive of a pattern of exceptional hearing loss for either of the Veteran's ears during this examination, and thus, the Board will not use Table VIa in evaluating hearing loss. See 38 C.F.R. § 4.86. The results under Table VI equate to Level III hearing acuity for the right ear and Level III hearing acuity for the left ear. See 38 C.F.R. § 4.85. Such findings are commensurate with no more than a noncompensable evaluation according to Table VII. In March 2010, the Veteran underwent an audiological consultation with VA. On examination, the Veteran was noted as having mild sensorineural hearing loss in his right ear from 4000 Hz to 8000 Hz with good word recognition, which was noted as 84% at 65 decibels (dB); his left ear was noted as having mild to moderate sensorineural hearing loss with fair word recognition, which was 72% at 65 dB. It was noted that the Veteran's hearing loss may cause situational communication problems, which could be solved with a hearing aid on the left. The Veteran was fitted for a left ear hearing aid in April 2010. The Board assumes that the Maryland CNC speech discrimination test was used to obtain the word recognition percentages noted in the March 2010 VA treatment record. However, the Board finds that these findings are inadequate for rating purposes as puretone thresholds are not reported, and the Board is unable to obtain a puretone threshold average from the March 2010 VA treatment record. The Board is unable to evaluate the Veteran's hearing acuity on the basis of Maryland CNC speech discrimination scores alone under the relevant rating criteria. See 38 C.F.R. §§ 4.85, 4.86, Tables VI and VIa. The Veteran underwent another VA audiological examination in October 2011. At that time he reported ringing in his ears and that he misunderstands words or could not hear conversations. He had a left hearing aid only at that time, which was his only treatment. He also endorsed functional impairments that included difficulty conversing, particularly in crowds, and distraction due to his tinnitus. The Veteran underwent audiometric testing which revealed the following results: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Speech Discrimination RIGHT 35 25 25 30 45 31.25 80% LEFT 30 25 45 50 60 45 76% The examiner described the functional impairment of his hearing loss as typically interfering with word understanding in any type of competing noise, as well as difficulty hearing spoken guidance, instruction or comments from other workers when in noise. He had difficulty understanding telephone communication because he cannot read lips or facial expressions of the other talker during the communication. The above results are not productive of a pattern of exceptional hearing loss for either of the Veteran's ears during this examination, and thus, the Board will not use Table VIa in evaluating hearing loss. See 38 C.F.R. § 4.86. The results under Table VI equate to Level III hearing acuity for the right ear and Level III hearing acuity for the left ear. See 38 C.F.R. § 4.85. Such findings are commensurate with no more than a noncompensable evaluation according to Table VII. Id. Finally, the Veteran underwent a VA audiological examination in March 2013. During that examination, the Veteran continued to report trouble hearing and understanding certain voices. The Veteran underwent audiometric testing which revealed the following results: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Speech Discrimination RIGHT 15 15 15 30 40 25 88% LEFT 15 15 30 40 45 32 80% The examiner noted that the word recognition thresholds obtained were considered of fair test reliability. He noted that the Veteran displayed long delays in responses with objective substitutions noted; he was re-instructed multiple times. The Veteran was noted as having this issue previously at his last VA examination. He noted that given the Veteran's degree of hearing loss, "one would expect slightly better word recognition scores than those volunteered by [the Veteran]." The above results are not productive of a pattern of exceptional hearing loss for either of the Veteran's ears during this examination, and thus, the Board will not use Table VIa in evaluating hearing loss. See 38 C.F.R. § 4.86. The results under Table VI equate to Level II hearing acuity for the right ear and Level III hearing acuity for the left ear. See 38 C.F.R. § 4.85. Such findings are commensurate with no more than a noncompensable evaluation according to Table VII. Id. In the Veteran's numerous statements on examination and of record, as well as in his September 2012 testimony, he reported being unable to hear in noisy environments and that he had difficulty understanding and following conversations, particularly with his wife. The Board is cognizant of the Veteran's contentions concerning his difficulty in hearing, and he described the functional impact of his hearing loss in his statements in support of his claim, his testimony at the September 2012 hearing, as well as during his VA examinations, as noted above. See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). However, the assignment of disability ratings for hearing impairment is derived from a mechanical formula. That mechanical application does not yield a compensable evaluation for the Veteran's level of hearing loss. Although he feels he should be compensated for his hearing loss, the evidence in this case indicates that the Veteran's actual loss of hearing acuity is noncompensable under the relevant rating criteria. Accordingly, the Board finds that a compensable evaluation for his bilateral hearing loss is not warranted on the evidence of record. See 38 C.F.R. §§ 4.7, 4.85, Diagnostic Code 6100. The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2013). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is adequate. An evaluation in excess of that assigned is provided for greater loss of hearing acuity. Additionally, the diagnostic criteria specifically address losses of acuity. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. In reaching the above conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER A compensable evaluation for bilateral hearing loss is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs