Citation Nr: 1338611	
Decision Date: 11/22/13    Archive Date: 12/06/13

DOCKET NO.  11-08 637	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUE

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


REPRESENTATION

Veteran represented by:	Massachusetts Department of Veterans Services


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Nigam, Counsel


INTRODUCTION

The Veteran served on active duty from November 1944 to July 1946.  

This case comes before the Board of Veterans' Appeals (hereinafter "Board") on appeal of a November 2010 rating decision of the Department of Veterans Affairs (hereinafter "VA") Regional Office (hereinafter "RO") in Providence, Rhode Island.  

The Veteran testified before the undersigned Veterans Law Judge (hereinafter "VLJ") at an April 2013 hearing conducted at the RO.  A transcript of that hearing is of record.  

In June 2013, the Board remanded the claim to the RO via the Appeals Management Center (hereinafter "AMC"), in Washington, DC for further development of the record, to include obtaining outstanding VA treatment records, and providing a new VA examination and medical opinion.  The Board finds that there has been substantial compliance with the March 2013 remand instructions.  Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the U.S. Court of Appeals for Veterans Claims (hereinafter "Court") or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see Dyment v. West, 13 Vet. App. 141 (1999) (holding that remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with remand directives).  In this regard, the AMC has attempted to obtain outstanding VA treatment records, and in September 2013 the Veteran underwent a VA examination and medical opinion.  

In a March 2011 substantive appeal, and again at the April 2013 Board hearing, the Veteran discussed a blockage of the left ear which he believes is related to active service.  As noted in the June 2013 remand, it appears the Veteran is seeking service connection for this disability.  As the RO has not yet adjudicated this issue, it is REFERRED to the RO for its consideration.  See Godfrey v. Brown, 7 Vet. App. 398 (1995).  

This appeal was processed using the Veterans Benefits Management System (VBMS) and the Virtual VA paperless claims processing system.  Accordingly, any future consideration of this Veteran'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) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).  


FINDINGS OF FACT

1. All notification and development actions needed to fairly adjudicate the matter on appeal have been accomplished.  

2. For the entire period of the appeal, the Veteran's bilateral hearing loss does not warrant a compensable disability rating under the applicable rating criteria.  


CONCLUSION OF LAW

For the entire period of the appeal, the criteria for a compensable rating for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1-4.14, 4.85, 4.86, Diagnostic Code (hereinafter "Diagnostic Code" or "DC") 6100 (2013).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

Under the Veterans Claims Assistance Act (hereinafter "VCAA"), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 C.F.R. § 3.159 (2013).  

Filing a notice of disagreement (hereinafter "NOD") begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105.  Goodwin v. Peake, 22 Vet. App. 128 (2008).  Where a claim has been substantiated after the enactment of VCAA, the Veteran bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements.  Id.  Here, the Veteran was provided with the relevant notice and information in a September 2009 letter prior to the initial adjudication of his claim.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  The September 2009 letter also provided notice regarding the disability evaluation and effective date elements of a service connection claim.  Dingess/Hartman v. Nicholson, 19 Vet. App. at 473.  He has not alleged any prejudice with regard to any notice deficiency during the adjudication of his claim; hence further VCAA notice is not required with regard to the increased rating appeal.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  

VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim.  Here, the Veteran's VA records and identified private treatment records have been obtained and associated with the claims file.  The Veteran was also provided with VA examinations which, collectively, contain descriptions of the history of the bilateral hearing loss disability; document and consider the relevant medical facts and principles; and address the current nature and severity of the bilateral hearing loss disability.  Also, these examinations included discussions of the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. In addition to dictating objective test results, the Court has held that a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  VA's duty to assist with respect to obtaining relevant records and examination has been met.  38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  

Finally, as noted, the Veteran testified at a hearing before the Board.  The hearing was adequate as the undersigned VLJ who conducted the hearing explained the issue and identified possible sources of evidence that may have been overlooked.  38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010).  

The Merits of the Claim

In September 2009, the Veteran filed a claim for entitlement to a compensable disability evaluation for his service-connected bilateral hearing loss.  He contends that his bilateral hearing loss disability is more severe than reflected by the noncompensable rating currently assigned.  The Veteran's bilateral hearing loss disability is currently assigned under Diagnostic Code 6100.  38 C.F.R. §§ 4.85, 4.86.  

After a full review of the record, and as further explained below, the Board finds that the preponderance of the evidence weighs is against the assignment of a compensable valuation for the service-connected bilateral hearing loss for the entire period of the appeal.  

Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity.  Individual disabilities are assigned separate Diagnostic Codes.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2013).  When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  

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). In Fenderson v. West, 12 Vet App 119, 125-26 (1999), however, the Court distinguished appeals involving a veteran's disagreement with the initial rating assigned at the time a disability is service connected.  Accordingly, where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection, and consideration of the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required.  See id. at 126-27.  Moreover, the Board notes, the Court held that in claims for increased rating VA must consider that a claimant may experience multiple distinct degrees of disability, resulting in different levels of compensation, from the time the increased rating claim is filed to the time a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  

It is the responsibility of the rating specialist to interpret reports of examination in the 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 present.  38 C.F.R. § 4.2 (2013).  Consideration of factors wholly outside the rating criteria constitutes error as a matter of law.  Massey v. Brown, 7 Vet. App. 204, 207-08 (1994).  

Ratings shall be based, as far as practicable, upon the average impairments of earning capacity.  However, from time to time, VA will readjust this schedule of ratings in accordance with experience.  To accord justice in an exceptional case in which the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.  The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1).  

An examination for hearing impairment 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).  

Impaired hearing will be considered a disability only after threshold requirements are met.  See 38 C.F.R. § 3.385.  Once a disability is established, levels of hearing loss are determined by considering the puretone threshold average and speech discrimination percentage scores, resulting in a Roman numeral designation for hearing loss.  38 C.F.R. § 4.85(b), Table VI. Disability ratings are assigned by combining the level of hearing loss in each ear.  38 C.F.R. § 4.85(e), Table VII.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992) (assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered).  

Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination" is used to determine a Roman numeral designation (I through XI) for hearing impairment in each ear based on consideration of speech discrimination as well as puretone threshold averages, unless the examiner certifies that use of the speech discrimination test is not appropriate.  In that case, table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average" is used.  Table VII, "Percentage Evaluation for Hearing Impairment" is then used to determine the percentage evaluation by combining the Roman numeral of each ear.  38 C.F.R. §§ 3.383, 3.385, 4.85(b).  

If the Veteran has either of two exceptional pattern of hearings impairment, the Roman numeral value is determined using both Table VI and VIa.  38 C.F.R. § 4.86.  This method is used if the Veteran's puretone threshold at each of the four specified frequencies is 55 decibels or more, or if the Veteran's puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  Whichever table results in a higher Roman numeral value is used to calculate a disability evaluation using Table VII.  Id.  In this case, as discussed below, the Veteran's hearing loss does not meet the standard for an exceptional pattern of hearing impairment.  

A physical examination conducted in November 1944 generally indicates findings of normal left and right ears.  On Report of Physical Examination for the purpose of separation from Naval service, dated in July 1946, a "whispered voice" test was administered, which revealed findings of 15 out of 15.  However, it is noted that audiometric testing was not conducted at the separation examination.  Rather, the basis for the "normal" finding was the whispered voice test.  See Training Letter 10-02 ('whispered voice tests are notoriously subjective, inaccurate, and insensitive to the types of hearing loss most commonly associated with noise exposure'); VBA Training Letter 211D (10-02) (March 18, 2010) ('whispered voice tests . . . cannot be considered as reliable evidence that hearing loss did or did not occur').  

In August 2010, the Veteran underwent a VA audiology evaluation, during which he reported difficulty hearing especially in background noise.  The examiner observed that otoscopy revealed clear canals and visible tympanic membranes bilaterally, and tympanometry was within normal limits for shape, ear canal volume, middle ear pressure and compliance in both ears.  The examiner noted the Veteran was a hearing aid candidate for both ears.  On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
25
50
60
60
LEFT
15
25
40
50
55

Average puretone thresholds, in decibels, were 41 dB in the right ear and 37 dB in the left ear.  Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 92 percent in the left ear.  

In February 2011, the Veteran underwent treatment at the VA otolaryngology clinic.  He noted that he wears bilateral hearing aids.  On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
25
50
60
60
LEFT
15
25
40
50
55

Average puretone thresholds, in decibels, were 41 dB in the right ear and 37 dB in the left ear.  Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 92 percent in the left ear although the CID W-22 speech recognition test was utilized instead of the Maryland CNC list as required for rating purposes.  Examination of the external ear canals was observed to be dry with some flaky debris, but eardrums were intact and there was no middle ear fluid.  

During a November 2010 VA audiology examination, the Veteran complained of difficulty hearing while watching television, while on the phone, and in crowds.  On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
30
50
60
65
LEFT
15
20
35
50
50

Average puretone thresholds, in decibels, were 51 dB in the right ear and 39 dB in the left ear.  Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 90 in the left ear.  The examiner noted the Veteran's bilateral hearing loss had significant effects on his employability, insofar as the Veteran had difficulty hearing in adverse listening environments.  However, the examiner determined that physical and sedentary employment was possible if the employer would make reasonable accommodations to create a safe work environment given the Veteran's current level of disability.  Also, there were no effects on usual daily activities observed.  

In his VA Form 9, Appeal to the Board of Veterans' Appeals (hereinafter "VA Form 9"), received in March 2011, the Veteran argued that his hearing was significantly impaired during his time in service, and that VA audiologists had previously discovered the Veteran had a blockage in his left ear, which he believes is related to his military service, and which causes him to experience additional hearing loss.  

During his Board hearing in April 2013, the Veteran testified that he experiences difficulty hearing conversations when he is in a room with 3 or 4 people together and everyone is talking.  He also testified that when music is playing in the background he has difficulty listening to conversations.  He reported that he has hearing aids and that they have done nothing to help him better hear conversations because they only make sounds louder but not clearer.  The Veteran reported that his hearing has been the same for years.  

Most recently, in September 2013, the Veteran underwent a VA audiology examination.  On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
35
60
65
70
LEFT
20
25
50
55
65

Average puretone thresholds, in decibels, were 51 dB in the right ear and 43 dB in the left ear.  Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 88 percent in the left ear.  The examiner opined that the Veteran's hearing loss impacted the ordinary conditions of daily life, including his ability to work.  The examiner observed that the Veteran currently wears two hearing aids, and noted they were beneficial but he still struggled to hear people sometimes.  The Veteran reported he has more trouble hearing female voices then male voices, that he must raise the volume on the television to hear it better, and that he uses a speakerphone when talking on the phone.  

Applying the values of all audiological testing conducted to the rating criteria results in the highest numerical designations of Level II in the right ear, and of Level II in the left ear.  See 38 C.F.R. § 4.85, Table VI.  Application of the levels of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a noncompensable rating.  

As the Veteran's hearing loss, when calculated using Table VII, does not warrant a compensable disability evaluation, his claim is denied.  The Board has considered the Veteran's competent and credible lay statements that describe poor speech recognition, the exclusive reliance upon the use of hearing aids to hear, and an inability to hear the television, on the phone, and during conversations due to his hearing disability.  Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  However, as noted, assignment of disability 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).  

The preponderance of the evidence is against the claim so the benefit of the doubt rule is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. at 54-56.  The Veteran's hearing loss has not met the requirements for a higher rating at any time during the appeal period, so the Board may not stage his rating.  Fenderson v. West, 12 Vet App 119, 125-26 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  

The Board finds that there is no basis for referral for consideration of an extraschedular rating in this case.  38 C.F.R. § 3.321(b)(1) (2013).  The Veteran has not presented any evidence that his bilateral hearing loss results in a unique disability that is not addressed by the rating criteria.  The Veteran's bilateral hearing loss is evaluated under 38 C.F.R. § 4.85, Diagnostic Code 6100, the criteria of which is found by the Board to specifically contemplate the Veteran's level of disability and symptomatology.  As noted above, the Veteran's bilateral hearing loss is manifested by, at worst, level II hearing loss in the right ear and level II hearing loss in the left ear.  When comparing this disability picture with the symptoms contemplated by the Schedule, the Board finds that the Veteran's symptoms are adequately contemplated by the disability rating for bilateral hearing loss.  A rating in excess of the currently assigned rating is provided for certain manifestations of hearing loss, but the medical evidence reflects that those manifestations are not present in this case.  The criteria for a noncompensable rating for the Veteran's bilateral hearing loss more than reasonably describe his disability level and symptomatology and, therefore, the currently assigned schedular evaluation is adequate.  Thus, there is no basis for referral of the case for consideration of an extraschedular disability evaluation.  See Thun v. Peake, 22 Vet. App 111, 115-16 (2008); see also Bagwell v. Brown, 9 Vet. App. 337 (1996).  

Additionally, entitlement to a total disability rating based on individual unemployability (hereinafter "TDIU"), is an element of all appeals of an increased rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  The record shows the Veteran is currently unemployed, and the November 2010 VA examiner noted the Veteran's bilateral hearing loss had significant effects on his employability, insofar as the Veteran had difficulty hearing in adverse listening environments.  However, the November 2010 VA examiner determined that physical and sedentary employment was possible if the employer would make reasonable accommodations to create a safe work environment given the Veteran's current level of disability.  Therefore, any development or consideration under Rice is not appropriate.  


ORDER

A compensable disability evaluation for service-connected bilateral hearing loss is denied.  



____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs