Citation Nr: 1339455	
Decision Date: 12/02/13    Archive Date: 12/13/13

DOCKET NO.  11-11 034	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Lincoln, Nebraska


THE ISSUE

Entitlement to an initial compensable rating prior to June 8, 2011 and an initial rating in excess of 10 percent beginning June 8, 2011 for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

D. Bredehorst
INTRODUCTION

The Veteran served on active duty from June 1966 to June 1969.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the RO.

In March 2012, the Veteran testified at a videoconference hearing before the undersigned; the transcript of this hearing is associated with the file.


FINDING OF FACT

Prior to June 8, 2011, the Veteran's bilateral hearing loss is manifested by no worse than Level II hearing in the right ear and level IV hearing in the left ear, and beginning on that date the Veteran's bilateral hearing loss is manifested by no worse than Level IV hearing in each ear.


CONCLUSION OF LAW

The criteria for an initial compensable rating for bilateral hearing loss prior to June 8, 2011 and in excess of 10 percent beginning on that date are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.85, 4.86, Diagnostic Code (Code) 6100 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). 

As the September 2009 rating decision on appeal granted service connection for bilateral hearing loss, and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  In these instances, the General Counsel held that a Statement of the Case (SOC) was required in cases involving a "downstream" issue, but 38 U.S.C.A. § 5103(a) did not require separate notice of the information and evidence necessary to substantiate the newly raised issue.  Id.  In this case, the necessary SOC was issued in March 2011.  The claimant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to either of these "downstream elements."  See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008).  See also Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007).

The Board finds that VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A (West 2002).  The Veteran's service treatment records are associated with his claims file, and VA has obtained all pertinent/identified records that could be obtained.  The RO arranged for two VA examinations that are adequate for rating the disability.  See Barr v. Nicholson, 21. Vet. App. 303 (2007); see Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). 

Finally, the Veteran testified at a videoconference hearing.  The hearing was adequate as the undersigned explained the issue and identified possible sources of evidence that may have been overlooked.  38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010).  VA's duty to assist is met.  Accordingly, the Board will address the merits of the claim. 

Legal Criteria and Analysis

Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Codes.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2013).  When a question arises as to which of two ratings applies under a particular Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.  Consideration must be given to increased evaluations under other potentially applicable Codes.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  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 to be considered when making disability evaluations.  38 C.F.R. § 4.1.  Separate ratings can be assigned for separate periods of time, based upon the facts found.  Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Here, staged ratings were assigned.

The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a 3-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Although there is an obligation to provide sufficient reasons and bases in support of an appellate decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his or her behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122 (2000).

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996). 

The Veteran contends his bilateral hearing loss warrants a higher compensable rating than what was assigned.  During his videoconference hearing, he testified as to the impact of his hearing loss on his life.

In August 2009, the Veteran was afforded a VA examination and those findings were the basis of the initial zero percent rating assigned for the period prior to June 8, 2011.  On the audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
30
50
60
65
LEFT
15
25
60
65
70

The pure tone threshold average was 51 in the right ear and 55 in the left ear.  Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 80 percent in the left ear.

Relevant laws and regulations stipulate that evaluations of defective hearing range from non-compensable to 100 percent based on the organic impairment of hearing acuity.  Hearing impairment is measured by the results of controlled speech discrimination tests together with the average hearing threshold levels (which, in turn, are measured by puretone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second).  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). 

The provisions of 38 C.F.R. § 4.85 establish eleven auditory acuity levels from I to XI.  Tables VI and VII as set forth in § 4.85(h) are used to calculate the rating to be assigned.  In instances where, because of language difficulties, the Chief of the Audiology Clinic 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(h). 

In cases involving exceptional patterns of hearing impairment, the schedular criteria stipulates that, 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.  38 C.F.R. § 4.86(a).  Additionally, 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.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(b). 

The August 2009 findings do not demonstrate an exceptional pattern of hearing impairment and the examiner did not certify that the use of the speech discrimination test is not appropriate.  See 38 C.F.R. §§ 4.85, 4.86 (2012).  Therefore, the findings of the first examination are applied to Table VI and show the Veteran had Level II impairment in the right ear and Level IV impairment in the left ear.  Based on application of Table VII, the Veteran's bilateral hearing impairment was consistent with a noncompensable (0 percent) rating.

He was afforded another VA examination in January 2011.  On the audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
40
45
60
65
LEFT
10
45
60
65
70

The pure tone threshold average was 53 in the right ear and 60 in the left ear.  Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 90 percent in the left ear.  When these findings are applied to Table VI and then Table VII, the results once again are consistent with a noncompensable rating.

The first evidence the Veteran's hearing loss is compatible with a compensable rating is the June 8, 2011 audiogram, which was the basis for the assignment of a higher 10 percent rating as well as the effective date of the increase.  Here, no exceptional pattern of hearing impairment is shown and the puretone threshold average was 54 in the right ear and 58 in the left ear.  The private audiologist, who also used the Maryland CNC to measure controlled speech discrimination, indicated the Veteran had speech recognition ability of 80 percent in each ear.  These findings, when applied to Table VI show Level IV hearing bilaterally, which in turn results in a 10 percent rating when applied to Table VII.

Based on the evidence, the record shows that the Veteran's bilateral hearing loss did not meet the criteria for a compensable rating prior to the June 8, 2011 private examination and at no time were the findings shown to warrant a rating in excess of 10 percent.  Consequently, a higher rating is not warranted for either staged period.

The Veteran asserted at his hearing that he believed the VA examinations were wrong because he did not understand how the speech recognition scores were calculated.  While the Veteran seemingly challenges the competency of the VA audiologists he does not do so with any clear evidence or knowledge of how the examiners erred in performing the examinations.  By his own admission, he did not know how the speech recognition scores were calculated and, instead, devised what he believed could be a method.  Thus, the Veteran's assertion is based on speculation and a lack of understanding of how the test was scored.  Even when the claimant challenges a VA examination or opinion, the Board may assume the competency of the VA medical examiner as long as, under 38 C.F.R. § 3.159(a)(1), he or she is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  See Cox v. Nicholson, 20 Vet. App. 563 (2007).  Here, the VA examiners are state-licensed audiologists and are presumed to have the appropriate knowledge based on their training and experience.

As previously noted, the rating for a hearing disability is based on clinical data obtained from audiometry testing.  Lendenmann, supra.  The preponderance of the evidence is against the assignment higher staged ratings; therefore, the benefit-of-the-doubt doctrine is not applicable.  See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

The Board also considered whether referral for extraschedular consideration is warranted under 38 C.F.R. § 3.321 (2013), but finds that it is not.  The determination of whether a claimant is entitled to an extraschedular rating is a three-step inquiry.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id.  If it is determined that this is so, the second step of the inquiry requires a determination of "whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization.  Id. at 116.  Finally, if the first two steps of the inquiry have been satisfied, the third step requires referral of the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extraschedular rating is warranted.  Id.   

Here, the Board finds neither the first or second Thun element is satisfied.  Although the criteria for hearing loss are strictly based on examination findings that are plugged into tables to determine the level of disability, build into this rating system is the recognition that the disability may impose functional impairment based on the Veteran's ability to understand speech.  Hence, the rating is based, in part, on speech recognition without the assistance of hearing aids.  The audiologists have noted the Veteran's reports of difficulty in understanding conversation in many listening situations such as in crowds or where there is a lot of background noise and that his hearing aids do help except in noisy environments.  He also testified having no difficulty having one-on-one conversations, but some difficulty hearing on the phone.

Although the speech discrimination testing does not duplicate all listening situations, it offers consideration as to the level of functional impairment due to Veteran's ability to understand speech by testing without the assistance of hearing aids.  Testing under these conditions more likely demonstrates greater functional impairment than testing under the more optimal situation of with listening with hearing aids.  Thus, the criteria reasonably describe the Veteran's disability picture, which is manifested by the impairment in understanding speech.  In short, there is nothing exceptional or unusual about the Veteran's bilateral hearing loss disability because the rating criteria reasonably describe his disability level and symptomatology.  Thun, 22 Vet. App. at 115.

With respect to the second Thun element, the evidence does not suggest that any of the "related factors" are present.  In particular, the Veteran does not contend, and the evidence of record does not suggest, that his bilateral hearing loss has caused him to miss work or has resulted in any hospitalizations.  The Board finds, therefore, that the Veteran's service-connected bilateral hearing loss does not result in marked interference with employment or frequent periods of hospitalization.  38 C.F.R. § 3.321(b)(1).  Thus, even if his disability picture was exceptional or unusual, referral would not be warranted.


ORDER

An initial compensable rating prior to June 8, 2011 and an initial rating in excess of 10 percent beginning June 8, 2011 for bilateral hearing loss are denied.



____________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs