Citation Nr: 1338170	
Decision Date: 11/20/13    Archive Date: 12/06/13

DOCKET NO.  10-15 092	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an initial compensable rating for service-connected bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


ATTORNEY FOR THE BOARD

C. Hancock, Counsel

INTRODUCTION

The Veteran served on active duty from September 1951 to February 1960.

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida that granted service connection and assigned an initial noncompensable rating, effective from October 18, 2006.

The Veteran requested to be afforded a video conference hearing to be conducted by a Veterans Law Judge.  He was notified by the RO, via a letter dated in September 2012, that his hearing was scheduled for October 2012.  However, the record indicates that the Veteran failed to appear for his hearing.  Accordingly, the Veteran's hearing request is considered withdrawn.  See 38 C.F.R. § 20.704(e) (2013).

This case was previously before the Board in December 2012 and June 2013, at which time the claim was remanded for further evidentiary development.  There has essentially been substantial compliance with the mandates set out in the most-recent June 2013 remand and the Board will proceed to adjudicate the appeal.  See Stegall v. West, 11 Vet. App. 268 (1998). 

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) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

FINDINGS OF FACT

1.  For the period from October 18, 2006, through January 25, 2013, the Veteran had no worse than Level VII hearing acuity in his right ear and Level I hearing loss in his left ear.

2.  For the period from January 26, 2013, the Veteran has had no worse than Level VII hearing acuity in his right ear and Level IV hearing loss in his left ear.


CONCLUSIONS OF LAW

1.  For the initial rating period from October 18, 2006, through January 25, 2013, the criteria for the assignment of an initial compensable rating for the service-connected hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2013). 

2.  For the period from January 26, 2013, the criteria for the assignment of a staged rating of 20 percent, but no higher, for the service-connected hearing loss has been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).

This appeal arises from the Veteran's disagreement with the initial evaluation following the RO's grant of service connection for bilateral hearing loss in April 2009.  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).  No additional discussion of the duty to notify is therefore required. 

VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection.  The duty to assist has been met in this case.  The Veteran's service treatment records are of record, and all identified and available VA and private medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim.  The Veteran has not identified any outstanding medical records.

The Veteran was recently afforded a VA examination in connection with the claim.  The Board finds that the August 2013 VA examination obtained in this case is adequate for rating purposes because it provides, under the circumstances, the necessary clinical findings to evaluate the hearing loss disability under the applicable rating criteria.  38 C.F.R. § 3.159(c)(4).  The Board had previously determined that the January 2013 VA examination did not appropriately address the effect of the Veteran's hearing loss disability on his daily activities.  The August 2013 VA examination conducted pursuant to the Board's remand instructions is found to be sufficient. 

Law and Regulations

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4.  The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  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 for that rating.  38 C.F.R. § 4.7.

In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings.  Where an increase in the disability rating is at issue, the "present level" of the veteran's disability is the primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Where a veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, as is the case here, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . ."  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found.  Id.  

Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. 38 C.F.R. § 4.85.  To evaluate the degree of disability for 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.

Where there is an exceptional pattern of hearing impairment, a rating based on puretone thresholds alone may be assigned.  38 C.F.R. § 4.86.  Puretone thresholds at each of the specified frequencies are 55 decibels or more in the right ear; thus a exceptional pattern is demonstrated.  38 C.F.R. § 4.86a.  

Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992); see also Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) (indicating that the criteria for evaluating the degree of impairment resulting from hearing loss under the Rating Schedule, unlike extraschedular consideration under section 3.321(b) of the regulations, rely exclusively on objective test results).

It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence.  38 C.F.R. § 3.102.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b).

Factual Background/Analysis

The Veteran's claim seeking service connection for hearing loss was received by VA on October 18, 2006.  

On the authorized audiological evaluation in October 2007 pure tone thresholds, in decibels, were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
55
65
75
75
105
LEFT
35
40
50
65
70

Puretone threshold average was 80 decibels in the right ear; 56 in the left.  Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 100 percent in the left ear.

The Veteran complained of trouble understanding speech, especially when accompanied by other noise, for the past three to four years.  He added that he had incurred a sudden loss of right ear hearing acuity about two months earlier.  The diagnoses were mixed hearing loss in the right ear with conductive component and "unspecified" hearing loss in the left ear.  The examiner did not comment on the effect of the Veteran's hearing loss disability on his occupational functioning and daily activities.   

In the April 2009 rating action on appeal, the RO granted service connection and assigned a zero percent (noncompensable) rating for bilateral hearing loss, effective from October 18, 2006.  

The Veteran was afforded a VA audiology examination on January 26, 2013.  On the authorized audiological evaluation pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
70
80
70
85
95
LEFT
40
45
50
60
65

The examining audiologist commented that the reported puretone thresholds (puretone threshold average of 82 decibels in the right ear and 55 decibels in the left ear) were obtained with good reliability, however, a conductive component was evident in the right ear and that it was possible that right ear thresholds were subject to change with medical evaluation/treatment.  The examiner also noted that speech recognition scores could not be obtained in connection with the examination ("CNT" -- "could not test" was reported).  To this, the examiner commented that the use of speech recognition scores was not appropriate for this Veteran "because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of puretone average and speech discrimination scores inappropriate."  The examiner added that the speech recognition findings were "in poor agreement with observed communication abilities and prior test results (especially for the left ear, with comparable thresholds and presentation levels)."  Acoustic reflexes could not be tested on the right side due to inability to maintain a seal.  The examiner recommended that the Veteran seek medical evaluation for abnormal tympanogram, conductive hearing loss component, and decreased right ear hearing acuity.  The examiner commented that only puretone thresholds should be used to evaluate the present hearing loss.  The diagnoses were mixed hearing loss, right ear; sensorineural hearing loss, left.  

The examiner added that the Veteran's hearing loss impacted ordinary conditions of daily life, to include his ability to work.  Specifically, the examiner reported that the Veteran asserted that he had difficulty understanding speech (especially in noisy surroundings), had problems hearing television and radio, and also had difficulty hearing his clients at work.  Martinak.

A January 2013 VA nursing telephone encounter note includes an evaluation of possible inner ear infection.  A May 2013 VA nursing triage note shows that the Veteran was seen for opaque fluid draining from his right ear; he was noted to have had a tube in that ear for three months which had never been drained.  He also complained of bilateral ear pain.  

Pursuant to the Board remand, the Veteran was also afforded a VA audio examination in August 2013.  This examination was conducted by the same VA audiologist who conducted the January 2013 VA examination.  

On the authorized audiological evaluation, pure tone thresholds were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
70
75
70
70
75
LEFT
40
45
55
60
70

Puretone threshold average was 72 decibels in the right ear; 57 in the left Speech audiometry revealed speech recognition ability of 86 percent in the right ear and of 92 in the left ear.

The examining audiologist commented that the reported puretone thresholds test results were "not valid for rating purposes (not indicative of organic hearing loss)."  He explained that while the puretone and speech results were obtained with good reliability, a conductive component, however, was evident in the right ear and it was possible that right ear thresholds were subject to change with medical evaluation/treatment.  The examiner added that the use of the speech recognition findings were "not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of puretone average and speech discrimination scores inappropriate.  The diagnoses were right ear mixed hearing loss and left ear sensorineural hearing loss.  The examiner noted that a tube was visualized in the right ear and appeared to be plugged with debris; test results were consistent with a  non-patent ear tube and middle ear pathology.  The examiner noted that the Veteran's hearing loss impacted ordinary conditions of daily life, to include his ability to work.  Specifically, the examiner reported that the Veteran asserted that he had difficulty understanding speech (especially in noisy surroundings), had problems hearing television and radio, and also had difficulty hearing his clients at work.  Martinak. 

Analysis

The medical record includes three VA audiometry findings which can here be used to rate the Veteran's service-connected bilateral hearing loss.  The January and August 2013 VA examinations include the examiner's comment that puretone thresholds were obtained with good reliability, but there was a conductive component in the right ear and it was possible the right ear findings were subject to change with medical treatment.  In the rating decision granting service connection, the RO characterized the service-connected disability as "bilateral hearing loss;" there was no indication whether it was conductive or sensorineural hearing loss.  VA examinations consistently include diagnoses of mixed hearing loss in the right ear and sensorineural hearing loss in the left.  Thus, whether the findings are due to conductive or organic hearing loss is not determinative.  The Board will consider the findings to evaluate the Veteran's service-connected hearing loss.  

In October 2007, the average puretone threshold for the right ear was 80 decibels and 56 decibels for the left ear; speech discrimination was 96 percent in the right ear and 100 percent in the left ear.  Under 38 C.F.R. § 4.86(c), such right ear hearing acuity is characterized as Level VII hearing in the right ear.  Left ear hearing was shown to be at Level I.  Under 38 C.F.R. § 4.85, Table VII where there is Level VII hearing acuity in the poorer ear and Level I hearing acuity in the better ear, a zero percent (or noncompensable) rating is to be assigned (under Diagnostic Code 6100).

However, from January 26, 2013, to the present, the audiometric findings of record warrant the assignment of a 20 percent rating, but no higher.  In January 2013, audiometric findings set out at this time showed that right ear hearing acuity, measured solely by puretone threshold findings, was Level VII and left ear findings were at Level III.  See Table VIA.  Pursuant to Table VII, this warrants a 20 percent disability rating.  Likewise, the puretone thresholds alone (without utilization of the speech recognition scores) from the August 2013 VA audio examination shows right ear hearing at Level VI and left ear hearing at Level IV.  These too, under Table VII, warrant the assignment of a 20 percent disability rating.  

The medical evidence of record does not demonstrate sufficient hearing loss to warrant the assignment of rating in excess of 20 percent.  

The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing.  The symptoms associated with the Veteran's bilateral hearing loss (i.e., difficulty hearing and understanding speech) are contemplated by the rating criteria and the medical evidence fails to show anything unique or unusual about the Veteran's bilateral hearing loss that would render the schedular criteria inadequate.  The Veteran's main complaint is reduced hearing acuity, which is precisely what is contemplated in the rating assigned.  The VA examiners specifically noted the Veteran's complaints regarding the effect of hearing loss on occupational function and on daily activities.  See Martinak, 21 Vet. App. at 447.  As the available schedular criteria for this service-connected disability are adequate, referral for consideration of an extraschedular rating is not warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  

ORDER

An initial compensable evaluation for the service-connected bilateral hearing loss from October 18, 2006, to January 25, 2013, is denied.

From January 26, 2013, a 20 percent staged rating, but no higher, for the service-connected bilateral hearing loss is granted, subject to the provisions governing the award of monetary benefits.



____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs