Citation Nr: 1338488	
Decision Date: 11/22/13    Archive Date: 12/06/13

DOCKET NO.  07-24 336	)	DATE
	)
	)


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



THE ISSUE

Entitlement to a compensable disability rating for bilateral hearing loss.



REPRESENTATION

Veteran represented by:	The American Legion



ATTORNEY FOR THE BOARD

S. Heneks, Counsel



INTRODUCTION

The Veteran served on active duty from September 1967 to July 1969.

This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which continued the Veteran's previously assigned noncompensable disability rating for bilateral hearing loss.  The Veteran submitted a notice of disagreement with this determination in August 2006, and timely perfected his appeal in July 2007.

In March 2011, the Board remanded this claim for additional evidentiary developement.  As will be discussed below, the remand directives were fully complied with and a decision may now be made based on the evidence of record.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with).


FINDINGS OF FACT

1.  During the period under review, the Veteran's bilateral hearing loss disability has been manifested at worst as Level II hearing loss in the right ear and Level IV hearing loss in the left ear, with speech recognition scores of 88 percent and 78 percent, respectively.

2.  The evidence in this case does not present an exceptional or unusual disability picture so as to render impractical the application of the regular schedular standards.





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CONCLUSIONS OF LAW

1.  The criteria for a compensable disability rating for the Veteran's bilateral hearing loss are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.85, 4.86 Diagnostic Code 6100 (2013).

2.  The criteria for referral for increased disability rating for bilateral hearing loss on an extraschedular basis are not met.  38 C.F.R. § 3.321(b)(1) (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant).  

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
I.  Duties to Notify and Assist

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).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if applicable, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and 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.  This notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes.  Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation.  

In this case, the Veteran submitted a claim for an increased rating in May 2006.  The Veteran was sent a letter in May 2006 which fully complied with the duty to notify provisions as outlined above.  


VA has also fulfilled its duty to assist the Veteran by obtaining identified and available evidence needed to substantiate the claim, including VA examinations.  Pursuant to the remand, VA treatment records dated since January 2009 were associated with the claims file and a VA examination was obtained in April 2011.  Concerning this, 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).  The Board finds that the May 2006 and April 2011 VA examinations obtained in this case are adequate, as they are based on a physical examination and medical evidence needed to address the rating criteria.  In particular, both examinations contain audiometric readings and address the impact of the Veteran's hearing loss on his employment and daily life.  

The Board observes that the evidence of record reflects that the Veteran underwent audiometric testing on two occasions but the corresponding audiograms have not been associated with the claims file.  Nevertheless, the Board concludes that despite the absence of the audiograms, the record contains adequate information to evaluate the Veteran's hearing loss, and that the absence of these audiograms will not prejudice the Veteran.  In this regard, the Board notes that the Veteran had an audiogram in February 2006 that is not of record.  However, in a March 2006 VA record, the examiner indicated that he had reviewed the February 2006 audiogram and reported the pure tone averages and speech discrimination scores, which is sufficient to evaluate the Veteran under the applicable rating criteria, 38 C.F.R. 
§§ 4.85, 4.86.  Additionally, it appears that the Veteran had another audiogram in March 2011 that is not of record.  However, the March 2011 VA audiologist reported that the test results indicated no significant change in hearing since 2006, when the Veteran filed his initial claim.  Further, the Board finds it significant that the Veteran was given another audiogram during the April 2011 VA examination, less than a month after March testing, that is adequate upon which to base a determination, as discussed above.  Accordingly, because the pure tone thresholds and discrimination scores were provided in the March 2006 VA record; there was a notation in March 2011 that no significant change had occurred since 2006; and the April 2011 VA examination was adequate, the Board finds that no prejudice has occurred and it is not necessary to obtain the February 2006 and March 2011 audiograms to reach a determination in this case.  For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case.  

Additionally, the Board finds there has been substantial compliance with its March 2011 remand directives.  The Board notes that the United States Court of Appeals for Veterans Claims (Court) has recently noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance."  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.)  The record indicates that the AMC scheduled the Veteran for a medical examination and the Veteran attended that examination.  The AMC later issued a supplemental statement of the case in March 2011.  Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand.  See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders).  Therefore, in light of the foregoing, the Board will proceed to review and decide the claim based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2013).

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007).  Importantly, the Board notes that the Veteran is represented in this appeal.  See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006).  The Veteran has submitted argument and evidence in support of the appeal.  Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication is not affected.




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II.  Relevant Law and Regulations

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 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.  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).  The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second.  The rating schedule establishes 11 auditory acuity Levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness.

In considering the evidence of record under the laws and records as set forth above, the Board concludes that a compensable evaluation for the Veteran's service-connected bilateral hearing loss is not warranted.  

III.  Evidence and Analysis

In February 2006, the Veteran had audiometric testing which indicated a decrease in speech discrimination in his left ear and a decrease in pure tone averages since his last hearing test in 2003.  His pure tone average in his right ear was reported as 22 and as 33 in his left ear.  His speech discrimination scores were reported as 92 in the right ear and 80 in the left ear.  These reported results correspond to Level I hearing for the right ear and Level III hearing for the left ear in Table VI.  When those values are applied to Table VII, a 0 percent disability evaluation would be assigned under the provisions of 38 C.F.R. § 4.85.  

On the May 2006 VA examination, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
20
65
55
LEFT
20
25
55
70
85

The Veteran's average pure tone threshold was 38.75 decibels in his right ear and 58.75 decibels in his left ear.  Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 80 percent in the left ear.  The results of the VA examination correspond to Level I hearing for the right ear and Level III hearing for the left ear in Table VI.  When those values are applied to Table VII, a 0 percent disability evaluation would be assigned under the provisions of 38 C.F.R. 
§ 4.85.  

The Veteran submitted a May 2007 private audio graph.  This record does not state what audiometric testing was used.  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 puretone audiometry test.  38 C.F.R. § 4.85(a).  


Assuming without deciding that the puretone thresholds comply with VA standards, pure tone thresholds, in decibels, were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
25
25
65
55
LEFT
30
60
70
70

The Veteran's average pure tone threshold was 42.5 decibels in his right ear and 57.5 decibels in his left ear.  Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 76 percent in the left ear.  The results of the VA examination correspond to Level I hearing for the right ear and Level IV hearing for the left ear in Table VI.  When those values are applied to Table VII, a 0 percent disability evaluation would be assigned under the provisions of 38 C.F.R. 
§ 4.85.  

On the April 2011 VA examination, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
25
60
75
LEFT
25
25
60
70
75

The Veteran's average pure tone threshold was 43.75 decibels in his right ear and 57.5 decibels in his left ear.  Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 78 percent in the left ear.  The results of the VA examination correspond to Level II hearing for the right ear and Level IV hearing for the left ear in Table VI.  When those values are applied to Table VII, a 0 percent disability evaluation would be assigned under the provisions of 38 C.F.R. 
§ 4.85.  


The Board notes that the provisions of 38 C.F.R. § 4.86 are not applicable in this case because none of the audiometric testing contained puretone thresholds at each of the four specified frequencies (1000, 2000, 3000 and 4000 hertz) of 55 decibels or more, and none of the puretone thresholds were 30 decibels or less at 1000 hertz and 70 decibels or more at 2000.

As discussed, the criteria for a compensable rating at any time during the pendency of this appeal have not been met.  38 C.F.R. §§ 4.85 and 4.86, Diagnostic Code 6100; see Hart, 21 Vet. App. 505.  Accordingly, the claim for an increased rating for service-connected bilateral hearing loss is denied.  

The above determinations are based upon application of the pertinent provisions of VA's rating schedule.  The Board finds that the record does not reflect that the Veteran's bilateral hearing loss is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis.  See 38 C.F.R. 
§ 3.321(b)(1).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  See Thun v. Peake, 22 Vet. App. 111 (2008).

In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required.  Id., see also VAOGCPREC 6-96 (Aug. 16, 1996).  

In this case, the Board finds that the rating criteria to evaluate his bilateral hearing loss reasonably describe the Veteran's disability level.  As an initial matter, the Board notes that in Martinak v. Nicholson, 21 Vet. App. 447, 453-54 (2007), the Court upheld VA's policy of conducting audiometric testing in sound controlled rooms.  Additionally, the Veteran and his representative have offered no expert medical evidence demonstrating that an audiometry test conducted in a sound-controlled room produces inaccurate, misleading, or clinically unacceptable test results; nor have they offered any expert medical evidence demonstrating that an alternative testing method exists and that such method is in use by the general medical community.  Therefore, no additional action in this regard is warranted.  See Martinak, 21 Vet. App. at 454.  

The Board notes the Veteran's statements made in his August 2006 notice of disagreement and July 2007 Form 9 that his tinnitus should be factored in to his hearing loss rating, that he has difficulty in engaging in conversations, and that his occupation involves daily communication which is impacted by his hearing loss.  During the April 2011 VA examination, the Veteran reported having more difficulty understanding soft spoken conversations and hearing high pitched sounds since his May 2006 VA examination.  

Initially, the Board finds that the Veteran is separately compensated for his tinnitus at 10 percent disabling.  There is no provision in the rating schedule to combine hearing loss and tinnitus ratings.  The Board observes that while the Veteran's hearing impairment does affect his daily life and employment, it does not do so in an unusual way.  Importantly, in March 2011, a VA audiologist noted that a listening check of both the Veteran's hearing aids reflected that they were weak.  As a result, both aids were programmed to the current audiogram.  Thus, it appears that once his hearings aids were adjusted, he was able to hear more effectively.  The Board further observes that there is no indication in the record, or contention from the Veteran, that his hearing loss has caused marked interference with his employment or daily life to include missing work, losing jobs, or a decrease in his social activity.  Accordingly, extraschedular referral is not warranted.

Finally, the Court has recently held that a request for entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation.  There must be cogent evidence of unemployability in the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009).  The Veteran has not asserted, and review of the file does not show, that he is rendered unemployable by his service-connected hearing loss.  The Board accordingly finds that a claim for a TDIU is not raised by the rating issue on appeal before the Board. 

In sum, for reasons that have been expressed in detail above the Board has concluded that a rating in excess of the currently assigned noncompensable rating for the Veteran's service-connected bilateral hearing loss is not warranted.  The benefit sought on appeal is accordingly denied.

Because the evidence preponderates against the claim the benefit-of-the-doubt rule does not apply.  Gilbert, 1 Vet. App. 49, 54.


ORDER

Entitlement to a compensable disability rating for service-connected bilateral hearing loss is denied.



____________________________________________
K. A. KENNERLY
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs