Citation Nr: 1339372	
Decision Date: 12/02/13    Archive Date: 12/13/13

DOCKET NO.  12-11 500A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to an initial compensable rating for bilateral hearing loss prior to April 5, 2013.

2.  Entitlement to an initial evaluation in excess of 10 percent for bilateral hearing loss on or after April 5, 2013.  

3.  Entitlement to service connection for residuals of heat stroke.  


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


ATTORNEY FOR THE BOARD

J. Owusu-Asiedu, Associate Counsel 

INTRODUCTION

The Veteran had active service from July 1967 to July 1971 and from August 1971 to September 1989.

These matters come before the Board of Veterans' Appeals (Board) from May 2009, December 2009, and April 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO) in St. Petersburg, Florida, and Atlanta, Georgia.  

In the May 2009 rating decision, the RO in St. Petersburg, Florida, granted service connection for left ear hearing loss and assigned an initial noncompensable rating effective from August 19, 2008.  The RO also denied service connection for right ear hearing loss in that decision, but in the April 2012 rating, the RO in Atlanta, Georgia, granted service connection for right ear hearing loss and continued a noncompensable rating for bilateral hearing loss effective from August 19, 2008.  

In a May 2013 rating decision, the Atlanta RO increased the rating for bilateral hearing loss to 10 percent from effective April 5, 2013.  Nevertheless, applicable law mandates that, when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993).  Thus, the issue of entitlement to a higher initial evaluation remains on appeal and has been recharacterized as reflected on the title page.

In the December 2009 rating decision, the Atlanta RO also denied service connection for residuals of heat stroke, diabetes mellitus, gastroesophageal reflux disease, and asbestosis.  The Veteran filed a notice of disagreement in May 2010 as to the issues of entitlement to service connection for residuals of heat stroke, asbestosis, and diabetes mellitus.  In a May 2013 rating decision, the RO granted service connection for chronic obstructive pulmonary disease (COPD) (also claimed as asbestosis and asthma).  The RO issued a statement of the case in May 2013 as to the issues of entitlement to service connection for residuals of heat stroke and diabetes mellitus.  However, in his July 2013 VA Form 9, the Veteran limited his appeal to the issue of entitlement to service connection for residuals of heat stroke.  

Thus, the issues on appeal to the Board are entitlement to an initial compensable rating for bilateral hearing loss prior to April 5, 2013, entitlement to an initial rating in excess of 10 percent on or after April 5, 2013, and entitlement to service connection for residuals of heat stroke, as reflected on the title page.

A review of the Virtual VA paperless claims processing system and Veterans Benefits Management System (VBMS) does not reveal any additional documents not already contained in the paper claims file that are pertinent to the present appeal. 

The issue of entitlement to service connection for residuals of heat stroke 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.

 
FINDINGS OF FACT

1.  Prior to April 5, 2013, the Veteran manifested Level I hearing in his right and left ears.   

2.  Since April 5, 2013, the Veteran has manifested Level III hearing in his right ear and Level V hearing in his left ear.


CONCLUSIONS OF LAW

1.  The criteria for an initial compensable evaluation for bilateral hearing loss have not been met prior to April 5, 2013. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 3.159, 3.321, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2012).

2.  The criteria for an initial evaluation in excess of 10 percent for bilateral hearing loss have not been met on or after April 5, 2012. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 3.159, 3.321, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). 

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a)  and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 

With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration.  Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation.  However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

Nevertheless, the Veteran in this case is challenging the initial evaluations assigned following the grant of service connection for bilateral hearing loss.  In Dingess, the Court held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. See also VAOPGCPREC 8-2003 (December 22, 2003).  Thus, VA's duty to notify has been satisfied with respect to the issues of entitlement to a higher initial evaluation for his bilateral hearing loss.

In addition, the duty to assist the Veteran has also been satisfied in this case.  The Veteran's service treatment records as well as all identified and available post-service medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the claim.  The Veteran has not identified any outstanding records that are relevant to the issues being decided herein.  The Board also notes that the Veteran has not requested a hearing with respect to the issues being decided herein.

The Veteran was also afforded VA examinations in May 2009 and April 2013 in connection with his claim.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA examinations in this case are adequate, as they are predicated on a review of the Veteran's medical history as well as on examinations and fully address the rating criteria that are relevant to rating the disability in this case.

The Board does observe that the April 2013 VA examiner did not review the claims file; however, he did review the Veteran's own reported medical history and complaints.  He also performed an audiological examination that addressed all of the rating criteria.  Indeed, the Court has held that the relevant focus is not on whether a clinician had access to the claims file, but instead on whether the clinician was "informed of the relevant facts" in rendering a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

In Martinak v. Nicholson, 21 Vet. App. 447 (2007) the United States Court of Appeals for Veterans Claims (Court) 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, 21 Vet. App. at 455.  In this case, the May 2009 VA examiner indicated that the Veteran had difficulty hearing the television and has to watch a person talking in order to understand them.  The April 2013 VA examiner also asked the Veteran to describe the impact of his hearing loss on the ordinary conditions of his daily life.  The Veteran responded that he had difficulty hearing and understanding speech.

Moreover, in Martinak, the Court noted that, even if an audiologist's description of the functional effects of the appellant's hearing disability was somehow defective, the appellant bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  There have been no allegations of any prejudice caused by a deficiency in the examinations here.  Indeed, the Veteran has been represented throughout the course of the appeal, yet the documents submitted do not contain any such assertion.

Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined. 38 C.F.R. § 3.327(a).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. 

Thus, there is adequate medical evidence of record to make a determination in this case.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4).

The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007).  For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case.  Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal.


Law and 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. 38 C.F.R. § 4.7. 

In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings.  Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 

Where a veteran appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999).  If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (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). 

The Veteran's bilateral hearing loss is currently assigned a noncompensable evaluation prior to April 5, 2013, and a 10 percent evaluation thereafter, pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. 

In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. Lindenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second.  The rating schedule establishes 11 auditory acuity Levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 

VA audiological evaluations are conducted using a controlled speech discrimination test together with the results of puretone audiometry tests.  The vertical line in Table VI (printed in 38 C.F.R. § 4.85) represents nine categories of the percentage of discrimination based on a controlled speech discrimination test.  The horizontal columns in Table VI represent 9 categories of decibel loss based on the puretone audiometry test.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss.  The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85 and the statement of the case) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity.  For example, if the better ear had a numeric designation of Level "V" and the poorer ear had a numeric designation of Level "VII" the percentage evaluation is 30 percent. See 38 C. F. R. § 4.85. 

Regulations also provide that in cases of exceptional hearing loss, i.e., 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, 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. 38 C.F.R. § 4.86(a).  The provisions of 38 C.F.R. § 4.86(b)  further provide that when the puretone threshold is 30 decibels or less at 1,000 hertz and 70 decibels or more at 2,000, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral.  That numeral will then be evaluated to the next higher Roman numeral. 
I.  Prior to April 5, 2013

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a compensable evaluation for bilateral hearing loss for the period prior to April 5, 2013.

On May 5, 2009, the Veteran was provided a VA audiological examination during which he reported a gradual decrease in hearing beginning in the early 1980s.  He stated that his hearing loss in in both ears seemed to be getting worse.  He also stated that he had difficulty hearing a television and normal conversations and noted that he had to watch people talk in order to understand what was being said.  On audiological evaluation, the Veteran's puretone thresholds, in decibels, were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
10
35
65
65
LEFT
20
60
65
65

The pure tone threshold average was 44 decibels in the right ear and 53 decibels in the left ear.  Speech recognition was 96 percent in the right ear and 94 percent in the left ear.  Speech recognition was found to be 94 percent in the right ear and 88 percent in the left ear. 

These audiometric findings equate to Level I hearing in both ears. See 38 C.F.R. § 4.85, Table VI.  When those values are applied to Table VII, it is apparent that the currently assigned noncompensable evaluation for the Veteran's bilateral hearing loss prior to April 5, 2013, is accurate and appropriately reflects his bilateral hearing loss under the provisions of 38 C.F.R. § 4.85.

The record does not contain any other audiological findings during this time period.  Nor has the Veteran identified any outstanding records or other audiological testing.

The Board has also considered whether an initial compensable evaluation for bilateral hearing loss is warranted under 38 C.F.R. § 4.86 for this time period.  However, the Veteran's disability does not meet the requirements of 38 C.F.R. § 4.86.  In this regard, the available audiometric findings do not show the Veteran to have puretone thresholds of 55 decibels or more at each of the frequencies of 1,000, 2,000, 3,000 and 4,000 hertz or a puretone threshold of 30 decibels or less at 1,000 hertz and 70 decibels or more at 2,000 hertz.  Thus, the Board finds that the noncompensable evaluation is appropriate and that there is no basis for awarding a higher initial evaluation prior to April 5, 2013.


II.  On or After April 5, 2013

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an initial evaluation in excess of 10 percent for bilateral hearing loss on or after April 5, 2013.

On April 5, 2013, the Veteran underwent a VA examination in connection with his current claim.  He reported that he had difficulty hearing and understanding speech, especially with background noise.  On examination, the Veteran's puretone thresholds, in decibels, were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
10
50
55
65
LEFT
35
65
65
75

The pure tone threshold average was 45 decibels in the right ear and 60  decibels in the left ear.  Speech recognition was 76 percent in the right ear and 68 percent in the left ear. 

These audiometric findings equate to Level III hearing in the right ear and Level V hearing in the left ear. See 38 C.F.R. § 4.85, Table VI.  When those values are applied to Table VII, it is apparent that the currently assigned 10 percent evaluation for the Veteran's bilateral hearing loss assigned as of April 5, 2013, is accurate and appropriately reflects his bilateral hearing loss under the provisions of 38 C.F.R. § 4.85.

The record does not contain any other audiological findings during this time period.  Nor has the Veteran identified any outstanding records or other audiological testing.

The Board has also considered whether a higher initial evaluation for bilateral hearing loss is warranted under 38 C.F.R. § 4.86 for this time period.  However, the Veteran's disability does not meet the requirements of 38 C.F.R. § 4.86.  In this regard, the available audiometric findings do not show the Veteran to have puretone thresholds of 55 decibels or more at each of the frequencies of 1,000, 2,000, 3,000 and 4,000 hertz or a puretone threshold of 30 decibels or less at 1,000 hertz and 70 decibels or more at 2,000 hertz.  Thus, the Board finds that the 10 percent evaluation is appropriate and that there is no basis for awarding a higher initial evaluation on or after April 5, 2013.


III.  Conclusion

In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's bilateral hearing loss is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1).

The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008).  In this regard, 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.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id.; see also VAOGCPREC 6-96 (Aug. 16, 1996).  Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization).

The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, including his difficulty hearing and understanding speech.  As discussed above, there are higher ratings available under the diagnostic code, but the Veteran's disability is not productive of such impairment.

There is also no indication or allegation that the Veteran has had frequent periods of hospitalization or marked interference with employment.  

Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected bilateral hearing loss under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008).

The Board has considered whether the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) has been raised by the record.  In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims held that a TDIU claim is part of an increased rating claim when such claim is raised by the record.  The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability.  Id.  In this case, the Board finds that a claim for TDIU has not been not raised by the record or by the Veteran and his representative.  Specifically, the Veteran did not discuss any occupational impairment caused by his bilateral hearing loss.  There is also no evidence, lay or medical, that the Veteran is unemployable due to his bilateral hearing loss.  Nor has there been any such allegation.  Therefore, the Board finds that no further consideration of a TDIU is warranted. 


ORDER

An initial compensable evaluation for bilateral hearing loss prior to April 5, 2013, is denied.

An initial evaluation in excess of 10 percent for bilateral hearing loss on or after April 15, 2013, is denied.


REMAND

In his July 2013 VA Form 9, the Veteran requested a hearing before the Board at the RO with respect to the issue of entitlement to service connection for residuals of hearing loss.  The failure to afford the Veteran a hearing would amount to a denial of due process. See 38 C.F.R. § 20.904(a)(3)).  Therefore, a remand is required to the schedule the Veteran for a travel board hearing at the RO in Atlanta, Georgia.

Accordingly, the case is REMANDED for the following action:

The RO should take appropriate steps to schedule the Veteran for a hearing with a Veterans Law Judge of the Board at the local office in accordance with his request.  The Veteran should be notified in writing of the date, time, and location of the hearing.  After the hearing is conducted, or if the Veteran withdraws the hearing request or fails to report for the scheduled hearing, the claims file should be returned to the Board in accordance with appellate procedures.

The Veteran has the right to submit additional evidence and argument on the matter 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. 2012).



______________________________________________
J.W. ZISSIMOS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs