Citation Nr: 1338711	
Decision Date: 11/25/13    Archive Date: 12/06/13

DOCKET NO.  11-13 895	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to an initial compensable disability rating for bilateral hearing loss. 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife.


ATTORNEY FOR THE BOARD

Michael Wilson, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1973 to August 1975.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which, in relevant part, granted service connection for bilateral hearing loss and assigned a noncompensable disability rating, effective August 26, 2010.

The Veteran and his wife testified at a videoconference hearing before the undersigned in November 2012.  A transcript of that hearing is of record.

As such, the issue of entitlement to an increased disability rating for bilateral hearing loss, from September 28, 2011, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if further action is required on his part.


FINDING OF FACT

During the period from August 26, 2010 to August 8, 2011, the Veteran had level II hearing impairment in the right ear and level V hearing impairment in the left ear.  


CONCLUSION OF LAW

The criteria for a 10 percent disability rating for bilateral hearing loss, for the period from August 26, 2010 to August 8, 2011, have been met.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.85, 4.86 DC 6100 (2013).



REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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, 3.326(a) (2013).

Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlop v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, no further notice is required with regard to the current increased rating claim on appeal.

Regarding the duty to assist, VA has obtained the Veteran's VA treatment records for the applicable rating period, his private audiological testing results, and has provided him with adequate VA examination.  The only VA examination during the period at issues was conducted in November 2010, and included all necessary findings, including reports of the Veteran's functional impairment.  Martinak v. Nicholson, 21 Vet. App. 447 (2007

The United States Court of Appeals for Veterans Claims (Court) has interpreted the provisions of 38 C.F.R. § 3.103(c)(2) as imposing two distinct duties on VA employees, including Board personnel, in conducting hearings:  The duty to explain fully the issues, and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam).  At the Veteran's hearing the issues were identified, including the evidence needed to substantiate the claim.  There was also a discussion of possible evidence that could substantiate the claims.  The Bryant duties were thereby met.

Accordingly, the duty to assist has been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim for an increased disability rating for bilateral hearing loss.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  

II.  Disability Ratings

      A.  Governing Law and Regulations

Disability ratings are based on the average impairment of earning capacity resulting from a disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013).  An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment.  38 C.F.R. § 4.10 (2013).  Separate diagnostic codes identify the various disabilities.  

Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating.  38 C.F.R. § 4.7 (2013).  Otherwise, the lower rating will be assigned.  Id.

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  See 38 C.F.R. §§ 4.1, 4.2, 4.41 (2013).  Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present.  See 38 C.F.R. §§ 4.2 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991).

In Fenderson v. West, 12 Vet. App 119 (1999), the United States Court of Appeals for Veterans Claims (Court) emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case, such as this one, where the assignment of an initial disability evaluation is challenged following the disability in question having just been recognized as service-connected.  In these cases, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating."  Id.  

The Veteran bears the burden of presenting and supporting his claims for benefits.  38 U.S.C.A. § 5107(a) (West 2002).  In its evaluation, the Board considers all information and lay and medical evidence of record.  38 U.S.C.A. § 5107(b) (West 2002).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant.  Id.

      B.  Rating Criteria and Analysis

Evaluations of defective hearing are based on organic impairment of hearing acuity, as measured by the results of controlled speech discrimination testing, together with the average hearing threshold level, as measured by puretone audiometry tests, in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz.  See 38 C.F.R. § 4.85, DC 6100 (2013).  

To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI.  Id.  Pursuant to VA's rating schedule, the assignment of a disability rating for hearing impairment is derived by a purely mechanical application of the rating schedule to the numeric designations derived from the results of audiometric evaluations.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  

Other than in exceptional cases of hearing loss, VA arrives at the proper designation of hearing loss in each ear by mechanical application of 38 C.F.R. § 4.85, Tables VI and VII, to arrive at a rating based upon the respective Roman numeral designations for each ear.  

Exceptional hearing loss exists if there is 30 decibels or less of loss at 1,000 Hertz. and 70 decibels or more at 2,000 Hertz.; or 55 decibels or more at all relevant frequencies.  38 C.F.R. § 4.86 (2013).  There is no evidence of an exceptional pattern of hearing loss in the Veteran's case.

In the instant appeal, the Veteran's hearing acuity was determined during a November 2010 VA contract examination.  The results of audiometric testing performed during the examination are as follows, with puretone thresholds recorded in decibels: 




HERTZ



1000
2000
3000
4000
RIGHT
30
40
90
105
LEFT
40
75
90
105

The average pure tone threshold in the Veteran's right ear was 66.25 decibels, and the average pure tone threshold in his left ear was 77.5 decibels.  On the Maryland CNC speech recognition test, the Veteran was shown to receive an initial score of 92 percent for the right ear and 80 percent for the left ear.  The examination report indicated, however, that best performance results showed a score of 84 percent for the left ear.  

As the report does not clearly indicate with speech recognition score is more reflective of the Veteran's level of hearing impairment for the left ear, the Board will afford the Veteran the benefit of the doubt and apply the initial test results.  As such, these results equate to an assignment of level II hearing loss for the right ear and level V hearing loss for the left ear, upon application of Table VI.  These levels correspond to a 10 percent disability rating when applied to Table VII.  

The audiological testing results from the examination are essentially consistent with those found in a September 2010 private audiological evaluation submitted by the Veteran from Better Sound Hearing Aid Service.  Audiometric test results from that evaluation are as follows, with puretone thresholds recorded in decibels: 



HERTZ



1000
2000
3000
4000
RIGHT
45
70
95
100
LEFT
65
85
105
110

These results show an average pure tone threshold in the Veteran's right ear of 77.5 decibels, and an average pure tone threshold in his left ear of 91.25 decibels.  Speech recognition testing revealed a score of 100 percent for the right ear and 70 percent for the left ear.  Assuming the Maryland CNC test was used; the Veteran had level II hearing loss in the right ear and level VII loss in the left.  See 38 C.F.R. § 4.85(a).  This would also equate to a 10 percent rating.  

The level of the Veteran's hearing impairment was again measured during an August 9, 2011.  His representative has contested the reliability of the testing results, and the Veteran reported during his Board hearing that a speech recognition test was not performed, in contrast to the findings in the consultation report, which reports such testing.  This matter will be further considered following the remand development directed below.

Considering all of the evidence of record, the Board finds that the Veteran is entitled to a 10 percent schedular disability rating for his service-connected bilateral hearing loss for the period prior to August 9, 2011.  However, the test results have not shown findings that meet or approximate the criteria for a rating in excess of 10 percent.  See 38 C.F.R. § 4.85, Table VII (2013).  

The Board has considered the Veteran's testimony and statements regarding his hearing loss, including his report to the November 2010 VA contracted examiner regarding difficulties hearing high pitches, such as alarms and beepers; and his comments made during the November 2012 Board hearing regarding difficulty hearing conversations and needing to learn to read lips.  The record shows, however, that the Veteran has denied any occupational impairment related to his hearing loss.  The Veteran's competent testimony has been taken into consideration, however, his described symptomatology does not alter the Board's rating assignment.

Resolving reasonable doubt in favor of the Veteran, his service-connected bilateral hearing loss is found to warrant the assignment of an initial 10 percent disability for the period prior to August 8, 2011.  38 U.S.C.A. § 5107(b) (West 2002).  


III.  Extraschedular Consideration and TDIU

The rating schedule represents as far as is practicable, the average impairment of earning capacity.  Ratings will generally be based on average impairment.  See 38 C.F.R. § 3.321(a), (b) (2013).  In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321 (2013).  

The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  

The symptoms associated with the Veteran's service-connected hearing loss (i.e., difficulty hearing conversational speech and high-pitched noises) are contemplated by the rating criteria set forth above, and reasonably assess the severity of his disability.  The applied rating criteria are, therefore, adequate to evaluate the Veteran's disability and referral for consideration of an extraschedular rating is not warranted in this case.

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on individual unemployability (TDIU) due to service-connected disability is part of an initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record.  In the instant case, the Veteran has maintained that his hearing loss has not impeded his employment and that he remains employed on his own farm.  Thus, consideration of a TDIU is not warranted at this time.



ORDER

Entitlement to an initial 10 percent disability rating for bilateral hearing loss is granted for the period from August 26, 2010 to August 8, 2011.


REMAND

The last VA audiology treatment record associated with the claims file was in 2011, and records were last printed in March 2012.  The Veteran testified during his November 2012 Board hearing, however, that he had received VA audiology treatment, as recently as October 2012.  VA must obtain these outstanding audiological treatment records.  See 38 U.S.C.A. § 5103A (West 2002).

Additionally, given the Veteran's testimony, a new VA examination is needed to assess the current severity of his bilateral hearing loss.  

Accordingly, the claim is REMANDED for the following action:

1.  Obtain the Veteran's VA audiological treatment records, dated since August 2011.

Efforts to obtain these records should continue until they are obtained; unless it is reasonably certain that they do not exist or that further efforts would be futile.

If requested records cannot be obtained, inform the Veteran; also tell him what efforts were made to obtain the records and what additional actions will be undertaken with regard to his claims.

2.  Schedule the Veteran for a VA audiological examination.  The claims file and this REMAND should be reviewed in association with the examination.  

Testing to determine the current severity of the Veteran's hearing loss should include the use of controlled speech discrimination (Maryland CNC) and a puretone audiometry test.  The examination must be conducted without the use of any hearing aids.

The examiner should specifically comment on the effects of the Veteran's hearing loss on occupational functioning and daily activities.

3.  Review the claims file to ensure that the foregoing requested development, including the VA examination, has been completed.  If any requested development is not complete, implement corrective procedures.

4.  If the benefit sought on appeal is not granted in full, issue a supplemental statement of the case; and return this appeal to the Board, if otherwise in order.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).

______________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs