Citation Nr: 1338192	
Decision Date: 11/20/13    Archive Date: 12/06/13

DOCKET NO.  13-03 658	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to an initial compensable rating prior to August 5, 2011, and a rating in excess of 30 percent thereafter, for hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C. Fleming, Counsel


INTRODUCTION

The Veteran had active military service from October 1958 to August 1979.

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  In that decision, the RO granted service connection for hearing loss, assigning an initial noncompensable disability rating.  In a December 2012 rating decision, the RO awarded the Veteran an increased rating of 20 percent for his service-connected hearing loss, effective August 5, 2011.

The Board remanded the case in September 2013 for further evidentiary development and adjudication.  In the remand, the Board instructed the agency of original jurisdiction (AOJ) to obtain up-to-date records of VA treatment, provide the Veteran with VA audiological examination, and then re-adjudicate the claim.  The AOJ scheduled the Veteran for VA examination, which was conducted in October 2013.  The Veteran was then provided a supplemental statement of the case in October 2013, in which the AOJ awarded the Veteran an increased rating, to 30 percent for his service-connected hearing loss, effective August 5, 2011.  Thus, there has been compliance with the Board's remand instructions.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).

As the appeal of the Veteran's claim for higher initial ratings for hearing loss emanates from his disagreement with the initial ratings assigned following the grant of service connection, the Board has characterized this claim as one for higher initial ratings, in accordance with Fenderson v. West, 12 Vet. App. 119, 126 (1999).

The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in June 2013.  A transcript of the hearing has been associated with the Veteran's claims file.

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 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).


FINDINGS OF FACT

1.  For the period prior to August 5, 2011, the Veteran's hearing loss was manifested by hearing impairment corresponding to auditory acuity no worse than Level III in the right ear and Level II in the left ear.

2.  For the period from August 5, 2011, the Veteran's hearing loss has been manifested by hearing impairment corresponding to auditory acuity no worse than Level VI in the right ear and Level VI in the left ear.


CONCLUSIONS OF LAW

1.  The criteria for an initial compensable disability rating for service-connected hearing loss were not met for the period prior to August 5, 2011.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2013).

2.  The criteria for a disability rating in excess of 30 percent for service-connected hearing loss have not been met for the period from August 5, 2011.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2013).  To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).

The Board finds that all notification and development action needed to render a decision has been accomplished.

In this respect, through an April 2010 notice letter, the Veteran received notice of the information and evidence needed to substantiate his claim.  Thereafter, the Veteran was afforded the opportunity to respond.  Hence, the Board finds that the Veteran has been afforded ample opportunity to submit information and/or evidence needed to substantiate his claim.

The Board thus finds that "the appellant [was] provided the content-complying notice to which he [was] entitled."  Pelegrini, 18 Vet. App. at 122.  In this regard, the more detailed notice requirements set forth in 38 U.S.C.A. §§ 7105(d) and 5103A have been met.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  In addition, the Veteran was given the opportunity to respond following the April 2010 notice letter.

The Board notes that VCAA notice is not required with respect to every aspect of a claim raised by a claimant.  If, for example, a Veteran files a claim for service connection for a disability, the claim is granted, and he files an appeal with respect to the rating assigned and/or effective date of the award, VA is not required to provide a new VCAA notice with respect to the matter of his entitlement to a higher rating and/or an earlier effective date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007) (holding that when a claim for service connection has been proven, the purpose of § 5103(a) has been satisfied, and notice under its provisions has been satisfied).  The Board notes that after an appellant has filed a notice of disagreement as to the initial effective date or disability rating assigned-thereby initiating the appellate process-different, and in many respects, more detailed notice obligations arise, the requirements of which are set forth in 38 U.S.C.A. §§ 7105(d) and 5103A.  Id.  Here, the Veteran's claim for higher initial ratings falls squarely within this pattern.  Thus, no additional VCAA notice was required with respect to the claim on appeal.

Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the requirements of the VCAA.

The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim on appeal.  In that connection, the Veteran was provided VA examinations in June 2010, August 2011, and October 2013; reports of those examinations have been associated with the claims file.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  As noted below, the Board finds that the VA examinations obtained in this case are adequate, as they are predicated on consideration of all of the pertinent evidence of record, to include the statements of the Veteran and his representative, and reflect that the examiners conducted full audiological examination of the Veteran, including information necessary to apply the pertinent rating criteria.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the issue on appeal has been met.  38 C.F.R. § 3.159(c)(4).  The Veteran has further been given the opportunity to submit evidence, and he and his representative have provided written argument in support of his appeal.  In addition, the Veteran testified before the undersigned Veterans Law Judge at a hearing in June 2013.  Otherwise, neither the Veteran nor his representative has identified, and the record does not indicate, existing records pertinent to the appeal that need to be obtained.

Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required by 38 U.S.C.A. §§ 5103(a), 5103A and 38 C.F.R. § 3.159.

II.  Analysis

Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013).  When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2013).  After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2013).

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).  Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, 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 a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required.  See Fenderson, 12 Vet. App. at 126.

The Veteran contends that his service-connected hearing loss is more disabling than reflected by the initial noncompensable rating assigned prior to August 5, 2011, and the 30 percent rating assigned thereafter.

The Veteran's service-connected hearing loss has been evaluated under Diagnostic Code 6100 for hearing loss.  The assigned evaluation for hearing loss is determined by mechanically applying the rating criteria to certified test results.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Under Diagnostic Code 6100, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examination.  Evaluations of hearing impairment 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 1,000; 2,000; 3,000; and 4,000 Hertz (cycles per second).  To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven 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.  As set forth in the regulations, Tables VI, VIa, and VII are used to calculate the rating to be assigned.  See 38 C.F.R. § 4.85, Diagnostic Code 6100.  Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII.  See 38 C.F.R. § 4.85.  

Alternatively, VA regulations provide that in cases of exceptional hearing loss, when the pure tone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 Hertz) is 55 decibels or more, 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.  Each ear will be evaluated separately. 38 C.F.R. § 4.86(a).  The provisions of 38 C.F.R. § 4.86(b) further provide that, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever would result in the higher numeral.

Relevant evidence of record consists of reports of VA examination provided to the Veteran in June 2010, August 2011, and October 2013, as well as records of the Veteran's ongoing treatment by VA treatment providers.  The Veteran has also submitted written argument in support of his claim and has testified before the undersigned Veterans Law Judge.  Results from the June 2010 audiogram reflect that puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
65
80
100
LEFT
25
45
65
75
75

Puretone averages were 66.25 decibels for the right ear and 65 decibels for the left ear.  Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 100 percent in the left ear, using Maryland CNC tests.  At that examination, the Veteran complained that he had difficulty in hearing speech of the people around him.  Based on those results with the utilization of Table VI, the Veteran had Level III hearing impairment in the right ear and Level II hearing impairment in the left ear.  Applying the results to Table VII, a noncompensable disability rating is warranted for hearing loss based on the June 2010 VA examination.  See 38 C.F.R. § 4.85 (Diagnostic Code 6100).

Results from the August 5, 2011, audiogram reflect that puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
65
85
100
LEFT
25
45
65
75
75

Puretone averages were 67.5 decibels for the right ear and 65 decibels for the left ear.  Speech audiometry revealed speech recognition ability of 72 percent in the right ear and 72 percent in the left ear, using Maryland CNC tests.  At that examination, the Veteran complained that he had difficulty in hearing normal conversational speech.  Based on those results with the utilization of Table VI, the Veteran had Level VI hearing impairment in the right ear and Level V hearing impairment in the left ear.  Applying the results to Table VII, a 20 percent disability rating is warranted for hearing loss based on the August 5, 2011, VA examination. 

Results from the October 17, 2013, audiogram reflect that puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
45
70
85
105
LEFT
30
65
75
85
85

Puretone averages were 76.25 decibels for the right ear and 77.5 decibels for the left ear.  Speech audiometry revealed speech recognition ability of 68 percent in the right ear and 72 percent in the left ear, using Maryland CNC tests.  At that examination, the Veteran complained that he had difficulty in hearing conversation and frequently required people to repeat themselves, particularly when they were not looking directly at him.  Based on those results with the utilization of Table VI, the Veteran had Level VI hearing impairment in the right ear and Level VI hearing impairment in the left ear.  Applying the results to Table VII, a 30 percent disability rating is warranted for hearing loss based on the October 17, 2013, VA examination. 

Records from the Veteran's ongoing treatment from VA providers also reflect that he has been treated on several occasions during the appeal period for hearing loss, which is being treated with hearing aids.  He also testified before the undersigned Veterans Law Judge at a hearing in June 2013, at which time he stated that he had difficulty understanding speech when on the phone and when talking to people who were not looking directly at him when they spoke.  He mentioned in particular that he often had to ask customers at his workplace to repeat themselves.

For the period prior to August 5, 2011, applying the results of the Veteran's June 2010 VA audiogram reveals no worse than Level III hearing acuity in the right ear and Level II hearing acuity in the left ear.  Application of the above-noted findings to Table VII results in a noncompensable disability rating under 38 C.F.R. § 4.85, Diagnostic Code 6100.  Thus, the VA examination reports do not support the assignment of an initial rating in excess of what the RO has already awarded-a noncompensable rating-for the period prior to August 5, 2011.

For the period from August 5, 2011, applying the results of the Veteran's August 5, 2011, and October 17, 2013, VA audiograms reveals no worse than Level VI hearing acuity in the right ear and Level VI hearing acuity in the left ear.  Application of the above-noted findings to Table VII results in a 30 percent disability rating under 38 C.F.R. § 4.85, Diagnostic Code 6100.  Thus, the VA examination reports do not support the assignment of a disability rating in excess of what the RO has already awarded-a 30 percent disability rating-for the period from August 5, 2011.

The Board in no way discounts the difficulties that the Veteran experiences as a result of his hearing loss.  However, it must be emphasized, as previously noted, that the disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained.  Hence, the Board must base its determination on the results of the pertinent June 2010, August 2011, and October 2013 audiology studies of record.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Under these circumstances, the Board finds that for the period prior to August 5, 2011, the record presents no basis for assignment of an initial compensable disability rating for the Veteran's service-connected hearing loss.  Prior to August 5, 2011, his hearing acuity was no worse than Level III in the right ear and Level II in the left ear, which equates to a noncompensable disability rating under Table VII.  Similarly, the Board finds that for the period from August 5, 2011, the record presents no basis for assignment of a disability rating in excess of 30 percent for the Veteran's service-connected hearing loss.  For that period, his hearing acuity has been no worse than Level VI in the right ear and Level VI in the left ear, which equates to a 30 percent disability rating under Table VII.

As noted above, the Rating Schedule provides for rating exceptional patterns of hearing impairment under the provisions of 38 C.F.R. § 4.86.  However, the Veteran's test results do not demonstrate either (1) a pure tone threshold of 55 decibels or more in all four frequencies in either ear, or (2) a pure tone threshold of 70 decibels or more at 2,000 Hertz in either ear.  38 C.F.R. § 4.86.  Therefore, the Veteran is not entitled to consideration for exceptional patterns of hearing impairment under 38 C.F.R. § 4.86. 

The above determination is based on consideration of the applicable provisions of VA's rating schedule.  In particular, the Board notes that the June 2010, August 2011, and October 2013 VA audiological examination reports each describe the effects of the Veteran's hearing impairment on his daily life.  See Martinak v. Nicholson, 21 Vet. App. 447 (2007).  In particular, the Board notes that the Veteran reported at each VA examination that he had trouble understanding the speech of others, particularly if they were not looking directly at him, and often had to ask people to repeat themselves.  The Board also finds that at no time has the disability under consideration been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis.  See 38 C.F.R. § 3.321(b)(1).  Here, there is an absence of evidence of marked interference with employment (i.e., beyond that contemplated in the assigned evaluation), frequent periods of hospitalization, or evidence that the Veteran's service-connected hearing loss has otherwise rendered impractical the application of the regular schedular standards.  To the contrary, although the Veteran reported at his June 2013 hearing that he frequently has to ask customers to repeat themselves, he stated that he continued to work.  Thus, the criteria for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) are not met.  See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

Furthermore, it bears emphasis that the schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations.  38 U.S.C.A. § 1155.  Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  38 C.F.R. § 4.1 (2013).  Thus, based on the record before it, the Board does not find that the medical evidence demonstrates any unusual disability with respect to the claim that is not contemplated by the rating schedule.  The symptoms the Veteran experiences are those specifically contemplated by the rating schedule.  Thun v. Peake, 22 Vet. App. 111 (2008).  As a result, the Board concludes that a remand to the RO for referral of the rating issue to the VA Central Office for consideration of extra-schedular evaluation is not warranted.

For all the foregoing reasons, the Board finds that the claim for an initial compensable rating prior to August 5, 2011, and a rating in excess of 30 percent thereafter, for hearing loss must be denied.  In reaching this conclusion, 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 for increase, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Entitlement to an initial compensable rating prior to August 5, 2011, and a rating in excess of 30 percent thereafter, for hearing loss is denied.



____________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs