Citation Nr: 1338735	
Decision Date: 11/25/13    Archive Date: 12/06/13

DOCKET NO.  12-15 997	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut


THE ISSUE

Entitlement to an initial compensable rating for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Fussell, Counsel


INTRODUCTION

The Veteran had active service from September 1960 to September 1962.  

This matter comes before the Board of Veterans' Appeals (Board) from a November 2011decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut.   

In November 2012, the Veteran testified before the undersigned Veterans Law Judge sitting at the RO.  A transcript of the hearing is associated with the record on appeal.

The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim.  A review of the Virtual VA claims file reveals a copy of the transcript from the Veteran's November 2012 Board hearing.  The remainder of the documents in the Virtual VA file are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.


FINDINGS OF FACT

For the entire appeal period, the Veteran has no worse than Level I hearing in the right ear and Level IV hearing in the left ear.   


CONCLUSION OF LAW

The criteria for an initial compensable rating for bilateral hearing loss are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 4.3, 3.321, 4.1-4.10, 4.85, Diagnostic Code 6100 (2012).  



REASONS AND BASES FOR FINDING AND CONCLUSION

I. VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  Proper VCAA notice 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.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).  

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the appellant's service and the disability; 4) degree of disability; and 5) effective date of the disability.  

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. 

The Board observes that the Veteran has appealed with respect to the propriety of the initially assigned rating for his bilateral hearing loss from the original grant of service connection.  VA's General Counsel held that no VCAA notice is required for such downstream issues.  VAOPGCPREC 8-2003; 69 Fed.Reg., 25180 (May 5, 2004).  In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated."  Dingess, supra.  In this case, the Veteran's claim for service connection for bilateral hearing loss was granted and an initial noncompensable rating was assigned in the November 2011 rating decision on appeal.  Therefore, as the Veteran has appealed with respect to the initially assigned rating, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).   

Relevant to the duty to assist, the Veteran's service treatment records and private audiological records have been obtained and considered.  The Veteran has not identified any additional, outstanding records necessary to decide his pending appeal.  Rather, in April 2011 he reported that he had enclosed all remaining information and evidence that supported his claim and at his November 2012 Board hearing, he indicated that he was not currently seeking treatment for his bilateral hearing loss.

Additionally, the Veteran has been provided with a VA examination in August 2011 in order to adjudicate his initial rating claims.  Neither the Veteran nor his representative has argued that the examination is inadequate for rating purposes.  Moreover, the Board finds the examination is adequate in order to evaluate the Veteran's bilateral hearing loss as it included an interview with the Veteran, a review of the record, and a full examination, addressing the relevant rating criteria.  Although he testified at the travel Board hearing that he was willing to report of an additional VA examination, if it was determined that one was needed, because he also testified that he felt that there was no increase in the severity of his bilateral hearing loss, the Board finds that further VA examination was not be fruitful and would only serve to delay adjudication of his claim.  Therefore, the Board finds that the examination of record is adequate to adjudicate the Veteran's initial rating claim and no further examination is necessary.  

In this regard, the Board notes that, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that, relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  In the instant case, the August 2011 examiner specifically noted the Veteran's complaint that his greatest difficulty was understanding speech, particularly in the presence of background noise.  Therefore, as the August 2011 VA examiner addressed the functional effects of the Veteran's bilateral hearing loss, the Board finds that such examinations comply with the Court's holding in Martinak, and no further examination is necessary.  This is particularly true because also provided testimony as to his difficulty hearing a television, and was missing some of the conversations of people who speak in a higher pitched voice.   

The Veteran also offered testimony before the undersigned Veterans Law Judge at a Board hearing in November 2012.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. 

Here, during the November 2012 hearing, the undersigned Veterans Law Judge noted the issue on appeal.  Also, information was solicited regarding the nature and severity of the Veteran's bilateral hearing loss, to include the situations in which he has the most difficult hearing, and how such affects him in his life.  Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained.  See Bryant, 23 Vet. App. at 497.  As the Veteran testified that he was not currently receiving treatment for his bilateral hearing loss and specifically indicated that such had not worsened since his most recent VA examination in August 2011, the hearing discussion did not reveal any additional evidence that remained outstanding.  Under these circumstances, nothing gives rise to the possibility that evidence had been overlooked with regard to the Veteran's claim decided herein.  As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2)  and that the Board may proceed to adjudicate the claim based on the current record.

Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis, supra (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case; at least insofar as any errors committed were not harmful to the essential fairness of the proceeding.  Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. 

II. Analysis

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 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. Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7.  All benefit of the doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3.  

Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate.  Fenderson v. West, 12 Vet. App. 119 (1999).  

The Veteran's service-connected bilateral hearing loss is currently assigned a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100, effective April 4, 2011.  The Veteran contends that his hearing disability is worse than the currently assigned evaluation.  Therefore, he alleges that he is entitled to an initial compensable rating for such disability.  

Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second.  To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness.  38 C.F.R. § 4.85(h), Table VI.  In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met.  The assignment of disability ratings for hearing impairment is 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, 349 (1992).   

The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests.  These results are then charted on Table VI, Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule.  38 C.F.R. § 4.85.  An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  38 C.F.R. § 4.86.  

In April 2011 the Veteran reported that, during service, his position was "striking for gunners mate" during which he was exposed to the firing of shipboard guns and, also, his responsibilities included chipping pain in magazine.  As a result such exposure to loud noise he had experience hearing problems.  

At the November 2012 Board hearing, his representative indicated that the Veteran had informed her that his hearing loss had not really worsened in the last year, but that he was noticing some additional symptoms.  In response, the Veteran stated that his girlfriend was able to hear things that he did not hear.  He could not hear high-pitched voices or noises, e.g., crickets.  He also had difficulty hearing in the presence of background noise or when other people were talking.  Page 3.  In response to a query as to interference with daily activities, he responded that other than when his girlfriend called him to dinner, he did not hear her.  It generally did not interfere too much because he was not usually in a crowd or where there was background noise.  The Veteran indicated that he was not currently being treated by an audiologist.  He did not have hearing aids and had not yet applied to get hearing aids.  Page 5.  He had to turn a television up to hear it, and while not really loud it was at least louder than needed for his girlfriend to hear it.  Page 6.  He had difficulty hearing higher pitched voices.  Pages 6 and 7.  He did not believe that his hearing loss was getting worse.  Page 7.  

An April 2011 private audiological examination at the East Hartford Hearing Aid Center revealed the following pure tone thresholds measured in decibels:

Hertz
1,000
2,000
3,000
4,000
Average
Right Ear
20
55
Not tested
65
-
Left Ear
20
55
Not tested
65
-

Word recognition testing, conducted using an unspecified word list, revealed speech recognition ability of 84 percent in the right ear and 80 percent in the left ear.  No exceptional pattern of hearing loss was demonstrated.  As this word recognition testing is not shown to have been conducted using the Maryland CNC list as required by VA regulations, and because there was no testing of puretone thresholds in either ear at 3,000 Hertz (which does not allow for an average to be determined), these results cannot be used to rate the Veteran's bilateral hearing loss.  

An August 2011 VA audiological examination revealed the following pure tone thresholds, measured in decibels: 



Hertz
1,000
2,000
3,000
4,000
Average
Right Ear
20
55
60
60
49
Left Ear
15
55
65
65
50

Word recognition testing revealed speech recognition ability of 96 percent in the right ear and 80 percent in the left ear.  No exceptional pattern of hearing loss was demonstrated.  These audiometry test results equate to Level I hearing in the right ear and Level IV hearing in the left ear using Table VI.  38 C.F.R. § 4.85.  Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in the right ear and Level IV hearing in the left ear results in a noncompensable disability rating.  38 C.F.R. § 4.85.  

At the 2011 VA examination, the Veteran's claim file was reviewed and the reports of testing of his hearing acuity during service were noted.  Also, the results of his private audiometric testing in April 2011 were noted and it was observed that his hearing was within normal limits from 250 Hertz to 1,000 Hertz, with a sloping to moderate to moderately severe sensorineural hearing loss from 2,000 Hertz to 8,000 Hertz in each ear and with good speech discrimination ability in each ear.  The Veteran reported having had hearing difficulties since his military service.  Sometimes it was not too bad and at other times he was bothered by it.  He had the most difficulty hearing in the presence of background noise, and also complained of tinnitus.  He reported his exposure to loud noises (as in his April 2011 statement).  He had no other current otologic or vestibular complaints.  It was noted that the results of his current VA audiometric testing revealed a moderate to severe sensorineural hearing loss at 2,000 Hertz and above in the right ear and a moderate to moderately severe sensorineural hearing loss at 2,000 Hertz and above in the left ear.  He was informed that he was considered to be a candidate for binaural amplification based on the degree and configuration of his hearing loss.  He was advised to either become vested in the VA system or service-connected for hearing loss if he wished to pursue amplification though VA.  The examiner opined that the Veteran's bilateral hearing loss and his tinnitus were as likely as not a result of noise exposure during military service.  

The Board further finds that the evidence of record reflects no certification of language difficulties, inconsistent speech audiometry scores, or pure tone threshold findings of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz as to warrant consideration as an exceptional pattern of hearing impairment.  See 38 C.F.R. § 4.86(b). 

Therefore, the Board finds that, for the entire appeal period, the Veteran has no worse than Level I hearing in the right ear and Level IV hearing in the left ear.  As such, he is not entitled to an initial compensable rating for his bilateral hearing loss.

To the extent that the Veteran contends that his hearing loss is more severe than currently evaluated, the Board observes that the Veteran, while competent to report symptoms such as difficulty understanding speech, particularly in the presence of competing noise and background noise, difficulty hearing a television, and missing some of the conversations of people who speak in a higher pitched voice, he is not competent to report that his hearing acuity is of sufficient severity to warrant a 10 percent or greater evaluation under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to have.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  

Despite the foregoing, the Board acknowledges the Veteran's complaints as recited above.  Even after considering such contentions as to the effects of the disability on his daily life, the Board finds that the criteria for a compensable rating are not met.  See Lendenmann, supra (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).  

The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected bilateral hearing loss; however, the Board finds that his symptomatology has been stable throughout the appeal period.  Therefore, assigning staged ratings for such disability is not warranted.  

Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration.  An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable.  38 C.F.R. § 3.321(b)(1).  

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321(b)(1) are applied.  Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry.  First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  In this regard, the Court indicated that 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.  Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. 

Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, it must be determined whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization."  Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the appropriate authority determine whether, the claimant's disability picture requires the assignment of an extra-schedular rating.  Id. 

The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected bilateral hearing loss with the established criteria found in the rating schedule.  While the Veteran has described the functional impairment he experiences as a result of his bilateral hearing loss, as recited above.  However, the Board finds that the Veteran's bilateral hearing loss is fully addressed by the rating criteria under which such disability is rated.  In this regard, such criteria contemplate the difficulty the Veteran has hearing in all situations, to include with background noise, in groups, and with different pitched voices.  The rating schedule takes into account both the average decibel loss as well as speech discrimination scores for hearing loss.  Specifically, the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by Veterans with certain degrees and types of hearing disability.  

In support of this finding, the Board points to the regulatory history of 38 C.F.R. 
§§ 4.85 and 4.86. In this regard, the rating criteria for hearing loss were last revised, effective June 10, 1999. See 64 Fed. Reg. 25206 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these Veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of Veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of Veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17295 (April 12, 1994).  Accordingly, the Board finds that functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria.

Therefore, the Board finds that such manifestations of the Veteran's bilateral hearing loss are contemplated by the rating schedule.  This is particularly true when, as here, higher schedular ratings are possible; particularly if the Veteran in the future actually develops decreased hearing acuity.  

"Because the VA disability rating schedule is designed to consider the disabling effect of disabilities separately, no single DC provision will adequately assess the variety of symptoms involved with multiple service-connected disabilities."  Johnson v. Shinseki, No. 10-1785, slip op. at 10 (Vet. App. Mar. 27, 2013) (en banc).  Thus, as to the question of "whether [38 C.F.R.] § 3.321(b)(1) requires VA to consider multiple service-connected disabilities on a collective basis" the Court held that it did not.  Johnson v. Shinseki, No. 10-1785, slip op. at 4 (Vet. App. Mar. 27, 2013) (en banc) (noting that a concurring opinion in Brambley v. Principi, 17 Vet. App. 20, 27 (2003) that there should have been a determination of "whether the appellant's service-connected disabilities as a whole [sic] entitled [a Veteran] to [an extraschedular rating] under § 3.321(b)(1)" had never been adopted by the Court and concurring opinions are not binding on the Court" (citing Maryland v. Wilson, 519 U.S. 408, 412-13).  In other words, an extraschedular rating may not be assigned on the basis of the combined impact of the Veteran's service-connected bilateral hearing loss and his service-connected tinnitus (which are his only service-connected disorders).  

As such, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology for his service-connected bilateral hearing loss.  Moreover, there are no attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization.  Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted.  Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). 

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is part of an increased or initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record.  In this case, the record does not reflect, and the Veteran does not allege, that he is unemployable due to his bilateral hearing loss.  He had ample opportunity to do so though pleading during the pendency of this appeal and at his travel Board hearing but he did not do so.  Therefore, the Board finds that a TDIU is not raised by the record. 

The Board has also considered the applicability of the benefit of the doubt doctrine.  However, the preponderance of the evidence is against the Veteran's claim for an initial compensable rating for bilateral hearing loss. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his initial rating claim must be denied.  38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7.  


ORDER

An initial compensable rating for bilateral hearing loss is denied.  



____________________________________________
A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs