Citation Nr: 1338956 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 12-24 137 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an initial compensable disability rating for bilateral hearing loss. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Megan Marzec, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1966 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDING OF FACT The Veteran's right ear hearing loss has a Numeric Designation of no worse than III as per Table VI of the VA Rating Schedule; the Veteran's left ear hearing loss has a Numeric Designation of no worse than II as per Table VI of the VA Rating Schedule. CONCLUSION OF LAW The criteria for a compensable disability rating for bilateral hearing loss have not been met or approximated. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.7, 4.85, Diagnostic Code 6100 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. The Veteran is challenging the initial evaluation assigned following the grant of service connection for the disability on appeal. In Dingess, the Court held that in cases where service connection has been granted and an initial disability evaluation has been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91; also see Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Thus, because notice was provided to the Veteran in a March 2011 letter, which was legally sufficient, VA's duty to notify in this case has been satisfied. VA's duty to assist the Veteran has also been met. Service treatment records (STRs) and identified VA treatment records and private treatment records have been associated with the claims file. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. A VA audiological examination was provided in March 2011 in order to ascertain the severity of the Veteran's hearing loss. To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the VA examination report is adequate, as a thorough review of the file was conducted in each instance, and the examination provided findings relevant to the issue at hand. The Veteran's complaints and lay history were also considered and discussed. In addition, the audiological examiner described the effects of the hearing loss disability on the Veteran's ordinary activities of daily life. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). VA's duty to assist with respect to obtaining a VA opinion has been met. See 38 C.F.R. § 3.159(c)(4) (2013). The Board notes that the Veteran's last examination is nearly two and a half (21/2) year old. The mere passage of time since that examination is not reason enough, alone, to require reexamination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's bilateral hearing loss since the examination March 2011. The Veteran has not argued the contrary. Legal Criteria 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. See Bruce v. West, 11 Vet. App. 405, 409 (1998), quoting Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing loss disability establish eleven auditory acuity levels designated from I to XI. Tables VI and VII as set forth in the regulations are used to calculate the rating to be assigned. 38 C.F.R. § 4.85. In instances where, because of language difficulties, the Chief of the Audiology Clinic or other examiner certifies that the use of both puretone averages and speech discrimination scores is inappropriate, Table VIa is to be used to assign a rating based on puretone averages. 38 C.F.R. § 4.85(c). Puretone threshold average is the sum of the puretone thresholds at 1,000, 2,000, 3,000, and 4,000 Hertz, divided by four. When the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz ) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Additionally, when the puretone threshold is 30 decibels or less at 1,000 Hertz , and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. That numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 1507 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2013) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. In March 2011, the Veteran was afforded a VA audiology evaluation. At that time, the Veteran reported that he experienced difficulty hearing out of both ears. The Veteran's audiometric testing results were as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Right 45 80 105 105 84 Left 30 55 100 95 70 Speech recognition ability was measured at 92 percent in the right ear and 100 percent in the left ear. The examiner diagnosed bilateral mixed hearing loss. The examiner noted that the Veteran's hearing loss caused the greatest impact on activities of daily life such as listening to the television, understanding speech when surrounded by excessive background noise, and listening to women's voices. As indicated, the Veteran has a puretone threshold average of 84 in the right ear and 70 in the left ear. The Roman numeral designation for the right ear is III and the left ear is II. The application of the Rating Schedule warrants a noncompensable evaluation under Diagnostic Code 6100. These results do not provide a basis for assigning a rating greater than that assigned by the RO. There is also no basis for applying the special provisions of 4.86. The United States Court of Appeals for Veterans Claims (Court) has held that, "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." Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The March 2011 VA examination report included a section titled "Medical History" in which the examiner clearly stated the effects the Veteran's bilateral hearing loss disability had on both his occupational and daily activities. Therefore, the Board finds that the VA examination report is in substantial compliance with the guidelines of Martinak. A review of private treatment records shows that in April 2010, the Veteran underwent a private audiology evaluation. The results of the audiologic evaluation are in graphical form but are clear and the Board may review them. In this regard, the Board observes that in Kelly v. Brown, 7 Vet. App. 471 (1995), the Court determined that it could not interpret the results of an audiograph because interpretation required a factual finding, which is not the role of the Court in the first instance. However, the Board, as the finder of fact, is empowered to make factual findings in the first instance. The Veteran's audiometric testing results were as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Right 30 80 95 105 78 Left 25 50 85 85 61 The Board notes that the puretone threshold average reported by the private treatment provider differs from the Board's average because the Board uses the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. 38 C.F.R. § 4.85 (d). The private treatment provider used additional puretone thresholds in calculating the average. Word recognition ability was measured at 100 percent in the right ear and 100 percent in the left ear. However, there is no indication in the record that the private treatment provider used a controlled speech discrimination test (Maryland CNC). The private audiometric findings are not adequate for rating purposes. 38 C.F.R. § 4.85 (a). However, even if the private audiometric findings were adequate for rating purposes, the Veteran would have a noncompensable rating. Applying these values to the rating criteria results in a numeric designation of Level II in the right ear and 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. There likewise remains no basis for assigning a higher rating under 38 C.F.R. § 4.86(b). In deciding this claim, the Board acknowledges that the Veteran is competent to report symptoms of his hearing loss disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). He also is credible in his reports of symptoms and their effect on his activities. He is not however competent to identify a specific level of disability of his disability according to the appropriate diagnostic code. Such competent evidence concerning the nature and extent of the Veteran's service-connected hearing loss disability has been provided by VA medical professionals who have examined him. The medical findings (audiometric testing) directly address the criteria under which this disability is evaluated. The Board finds these records to be the only competent and probative evidence of record, and therefore is accorded greater weight than the Veteran's subjective complaints of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). In sum, the Veteran's right ear hearing loss disability is not shown to be worse than Level III and his left ear hearing loss disability is not shown to be worse than Level II. These results fall squarely within the schedular criteria for noncompensable rating. The criteria for a compensable disability rating are therefore not met. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher schedular rating. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Consideration has also been given as whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321 (b)(1). The Court has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record reflects that the manifestations of the disability are contemplated by the schedular criteria. There is no indication from the record that the Veteran seeks regular treatment for his bilateral hearing loss disability. Additionally, while the Veteran's bilateral hearing loss disability has been reported to cause him some difficulties with communication in some settings, there is no indication from the record that the Veteran's bilateral hearing loss disability make him unable to work. In sum, there is no indication that the average industrial impairment from the disabilities would be in excess of the disability ratings assigned. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. Thun, id. Finally, although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable. Even though he is over the age of 66, he has made no indication as to whether or not he is presently employed. Moreover, and rather significantly, no assertion has been made that his hearing loss has rendered him unemployable. The question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs