Citation Nr: 1338951	
Decision Date: 11/26/13    Archive Date: 12/06/13

DOCKET NO.  11-32 138	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas



THE ISSUE

Entitlement to an increased (compensable) rating for bilateral hearing loss.



REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.



ATTORNEY FOR THE BOARD

J. Connolly, Counsel




INTRODUCTION

The Veteran had active service from February 1969 to December 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  


FINDING OF FACT

The Veteran currently has, at worst, Level I hearing in his right ear and Level IV hearing in his left ear.


CONCLUSION OF LAW

The criteria for a compensable evaluation for bilateral hearing loss disability are not met.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.85, Part 4, Diagnostic Code 6100 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

Under the 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).  Here, the Veteran was provided with the relevant notice and information in a February 2010 letter prior to the initial adjudication of the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  The Veteran has not alleged any notice deficiency during the adjudication of the claim.  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 record.  The Veteran was also provided with VA examinations which, collectively, are adequate as the record was reviewed, the examiner reviewed the pertinent history, examined the Veteran, provided findings in sufficient detail, and provided rationale.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).   The Veteran was specifically examined to assess and then reassess the severity of this disability in question.  See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995).  The records satisfy 38 C.F.R. § 3.326.

In summary, the Board finds that it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate the claim.  Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran).


Rating

Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 C.F.R. § 4.3.  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 has already been established and increase in disability rating is at issue, present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period.

However, if VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made.  Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending.  Cf. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007) (Board finding that veteran had disability "at some point during the processing of his claim," satisfied service connection requirement for manifestation of current disability); Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007).  In Hart v. Mansfield, 21 Vet. App. 505 (2007), the United States Court of Appeals for Veterans Claims ("the Court") found no basis for drawing a distinction between initial ratings and increased rating claims for applying staged ratings.  Accordingly, it was held that 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.  In this case, there has not been a material change in the disability level and a uniform rating is warranted.

In evaluating service connected hearing impairment, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  The schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment.  Testing for hearing loss is conducted by a state-licensed audiologist, including a controlled speech discrimination test (Maryland CNC).

The evaluation is based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  See 38 C.F.R. § 4.85.  Table VII in the schedule is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear, the horizontal rows representing the ear having better hearing and the vertical columns the ear having the poorer hearing.  The percentage evaluation is indicated where the row and column intersect.  Table VIa is used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86.  See 38 C.F.R. § 4.85(c).  

When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 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.  See 38 C.F.R. § 4.86(a).  When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, 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.  That numeral will then be elevated to the next higher Roman numeral.  See 38 C.F.R. § 4.86(b).

The Veteran maintains that his hearing loss has steadily worsened since 1983.  He asserts that he has difficulty hearing as well as understanding conversations.  Lay statements have been submitted from another servicemember, J.A.P., and the Veteran's wife.  J.A.P. indicated that the Veteran had difficulty hearing what this person was saying, particularly when outdoors or when there was background noise.  He also had problems distinguishing where noises were coming from.  The Veteran's wife stated that the Veteran's hearing had worsened.  She related that she observed his ability to understand normal conversation diminish significantly.  She described various instances when he exhibited such difficulty.  

The Veteran is competent to report having difficulty hearing and that his hearing has worsened.  The lay persons are also competent to report what they have observed.  They are all also credible in that regard.  However, these statements are not as probative as the audiograms and medical opinions discussed below regarding his exact audiological findings at various Hertz levels or of the Veteran's speech recognition scores as these matters require medical expertise and a complex medical assessment.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).

At the outset, the Board notes that the Veteran submitted private audiological records, but the audiological information pertains to testing that occurred more than one year before his current claim for a higher rating.  As such, the Board will focus on the more recent VA examinations as they are the appropriate evidence for consideration for the current rating, along with the lay statements.  See 38 U.S.C.A. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.400.  The Board does recognize that September and November 2009 private medical reports made note that the Veteran had sensorineural hearing loss, but an audiogram was not provided.  

On the authorized VA audiological evaluation in April 2010, puretone thresholds, in decibels, were as follows:




HERTZ




1000
2000
3000
4000
RIGHT

10
20
65
85
LEFT

30
65
75
70

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 80 percent in the left ear.  The puretone threshold average in the right ear was 45.  The puretone threshold average in the left ear was 60.  The examiner stated that in the right ear, the Veteran had normal hearing from 500 to 2000 Hertz, but moderately severe to severe sensorineural hearing loss at 3000 to 4000 Hertz.  In the left ear, the Veteran had normal hearing at 500 Hertz, mild to moderate sensorineural hearing loss from 1000 to 1500 Hertz, and moderately severe to severe hearing loss at 2000 to 4000 Hertz.  The examiner stated that there were significant effects on employment as the Veteran had difficulty hearing and therefore might have difficulty in understanding co-workers in adverse listening conditions.  

On a June 2010 psychiatric evaluation, it was noted that the Veteran had retired from work based on his age/duration of work, i.e., his eligibility to retire.  

On the authorized VA audiological evaluation in January 2011, puretone thresholds, in decibels, were as follows:




HERTZ




1000
2000
3000
4000
RIGHT

10
20
65
85
LEFT

35
60
75
75

Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 84 percent in the left ear.  The puretone threshold average in the right ear was 45.  The puretone threshold average in the left ear was 61.  The examiner stated that in the right ear, the Veteran had hearing sensitivity from 250 to 2000 Hertz and moderate to moderately severe sensorineural hearing loss at 3000 to 8000 Hertz.  In the left ear, the Veteran had mild sensorineural hearing loss from 250 to 1000 Hertz and moderate to moderately severe sensorineural hearing loss from 2000 to 8000 Hertz.  

On the authorized VA audiological evaluation in January 2012, puretone thresholds, in decibels, were as follows:




HERTZ




1000
2000
3000
4000
RIGHT

15
25
65
75
LEFT

30
65
75
70

Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 84 percent in the left ear.  The puretone threshold average in the right ear was 45.  The puretone threshold average in the left ear was 60.  The examiner stated that the Veteran had bilateral sensorineural hearing loss in the frequency range of 500 to 4000 Hertz.  The examiner indicated that the Veteran's hearing loss impacted his ordinary conditions of life and work because he had difficulty understanding speech, especially on the television and in restaurants.  

The three audiology evaluations must be considered pursuant to the rating criteria.  Under the rating criteria, the April 2010 examination results constitute Level I hearing on the right and Level IV hearing on the left..  When combined, the result is a non-compensable or 0 percent disability evaluation.  Under the rating criteria, the January 2011 examination results constitute Level I hearing on the right and Level III hearing on the left.  When combined, the result is a non-compensable or 0 percent disability evaluation.  Under the rating criteria, the January 2012 examination results constitute Level I hearing on the right and Level III hearing on the left.  When combined, the result is a non-compensable or 0 percent disability evaluation.  

Further, the Board finds that 38 C.F.R. § 4.86(a) is not for application because the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is not 55 decibels or more.  The Board further finds that 38 C.F.R. § 4.86(b) is not for application as the puretone threshold is not 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, on any of the examinations.

The Board acknowledges the Veteran's contentions regarding his difficulty hearing, however, the audiology examination yielded results warranting a non-compensable rating throughout the appeal period.  This objective evidence is more persuasive with regard to the level of disability under the Rating Schedule as it specifically pertains to that rating criteria.  The Veteran has argued that the testing was performed in a controlled sound environment.  However, VA regulations set forth specific requirements for the conduct of audiology examinations used to rate hearing loss.  38 C.F.R. § 4.85(a); see also 38 C.F.R. § 4.85(b)-(d).  The Veteran and his representative have not identified the way in which the VA examination failed to comply with the regulatory requirements.  Those regulations anticipate that examinations will be conducted in a controlled environment.  59 Fed. Reg. 17296 (Apr. 12, 1994).  They also recognized that in certain exceptional circumstances examinations in a controlled environment would not adequately portray the level of hearing impairment under ordinary conditions of life.  Id.  For that reason, VA adopted 38 C.F.R. § 4.86 to evaluate those exceptional patterns of hearing loss.  Id.  The Veteran and his representative have not cited any authority for the proposition that testing in a soundproof room or controlled sound environment is inadequate to determine the effects of hearing loss under the ordinary conditions of life absent an exceptional pattern of hearing loss.  In any event, the precise conduct of hearing examinations is the province of state licensed audiologists who possess the necessary expertise to determine how best to conduct hearing examinations.  The Board does not possess the necessary expertise to question those determinations except to ensure that the examinations are conducted in accordance with the requirements of the regulations.

Further, in Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the Court addressed VA's policy of conducting all audiometry testing of hearing-loss claimants in a sound-controlled room and whether that practice is valid.  With respect to this matter, in that case, the appellant argued that VA's policy of conducting audiometry testing in a sound-controlled room is an erroneous interpretation of, or is otherwise inconsistent with, VA's medical examination regulations.  In rejecting this argument, the Court noted that the appellant offered no expert medical evidence demonstrating that an audiometry test conducted in a sound-controlled room produces inaccurate, misleading, or clinically unacceptable test results.  The Court also noted that appellant did not offer any expert medical evidence demonstrating that an alternative testing method exists and that this method is in use by the general medical community.  The Court instead found that the appellant simply offered his own unsubstantiated lay opinion as to the impropriety of testing in a sound-controlled room, and that VA's policy of conducting examinations in a sound-controlled room cannot be invalidated on this basis.  

Further, in Martinak, the Court, noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities.  See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2008).  The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  Here, a review of the audiological examination reflects that there was an adequate description of the functional effects of the Veteran's hearing loss on his daily life, including work.  This matter was addressed in the examination reports.  In that regard, the Board in no way discounts the difficulties that the Veteran experiences as a result of his hearing loss.  However, as was explained above, the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained.  Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology results of record.  See Lendenmann.  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.

In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  In this case, preponderance of the evidence is against a compensable rating.  

In considering the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis.  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran'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 Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

The symptoms associated with the Veteran's bilateral hearing loss disability are not shown to cause any impairment that is not already contemplated by the relevant diagnostic code, as cited above, and the Board finds that the rating criteria reasonably describe his disability.  Although the Veteran essentially asserts that an extraschedular rating should be awarded, there have not been any hospitalizations.  In addition, the Board finds that marked interference is not shown.  The Veteran is retired and the retirement was not precipitated by hearing loss disability.  Therefore, referral for consideration of an extraschedular rating is not warranted.


ORDER

Entitlement to a compensable rating for bilateral hearing loss is denied.  



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

Department of Veterans Affairs