Citation Nr: 1339475 Decision Date: 12/02/13 Archive Date: 12/13/13 DOCKET NO. 11-34 174 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Budd, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1954 through January 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran indicated in his December 2011 appeal that he wanted to be scheduled for a hearing at a local VA office. However, the Veteran withdrew his hearing request in January 2012. As the record does not contain any additional requests for an appeals hearing, the Board deems the Veteran's request for a hearing to be withdrawn. See 38 C.F.R. § 20.702 (2013). The Veteran submitted a claim for entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) in July 2013, but it has not been adjudicated by the agency of original jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT During the appeal period, the Veteran's bilateral hearing loss was manifested at worst by Level II hearing acuity in the right ear and Level IV hearing acuity in the left ear. CONCLUSION OF LAW The criteria for the assignment of a compensable disability rating for bilateral hearing loss disability have not been met. 38 U.S.C.A. §§ 1155, 5100, 5102. 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.85, 4.86, DC 6100 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA 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. The appeal arises from the Veteran's request to increase the evaluation assigned to his service connected disability. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial and will not be discussed. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). An August 2010 VA letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of a disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson at 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, private treatment records, and VA treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration (SSA). 38 C.F.R. § 3.159(c)(2). VA examinations were conducted in December 2010 and April 2013. The Veteran has not argued, and the record does not reflect, that these examinations were inadequate for purposes of rating this disability. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examiner reviewed the claims folder, conducted a physical examination of the Veteran, and noted the functional impact of his hearing loss. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). There is no indication in the record that any evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Analysis Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In all claims for increase, VA has a duty to consider the possibility of assigning staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold as measured by puretone audiometric tests. To evaluate the degree of disability resulting from service-connected hearing loss, the Schedule establishes eleven levels of impaired efficiency, numerically designated from Level I to Level XI. Level I represents essentially normal hearing acuity for VA compensation purposes, with hearing loss increasing with each level to the profound deafness represented by Level XI. 38 C.F.R. § 4.85, Tables VI, VII. Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. Exceptional patterns of hearing impairment are addressed in 38 C.F.R. § 4.86. When the pure tone 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). When the pure tone 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 Veteran has submitted a private audiological test performed in February 2010. These private records do not include the full results of a puretone audiometry test, but rather simply note that the Veteran's hearing loss was mild to severe in each ear. The records do indicate speech discernment of 96 percent in the right ear and 100 percent in the left ear, but do not state whether this information was the result of a controlled speech discrimination test (Maryland CNC), as is required for VA purposes. 38 C.F.R. § 4.85. Because the private examination was not adequate for VA purposes, the Board will rely upon the two VA examinations in evaluating the Veteran's claim. A VA audiological examination was held in December 2010. The report reflects that the pure tone thresholds of each ear, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 25 40 LEFT 20 20 20 35 50 Pure tone threshold averages, based upon the results between 1000 and 4000 Hertz, were 26.25 decibels in the right ear and 31.25 decibels in the left ear. Maryland CNC speech discrimination scores were 100 percent in the right ear, and 98 percent in the left ear. The examiner diagnosed both ears as having hearing within normal limits sloping to a mild to severe sensorineural hearing loss. The word recognition scores were excellent bilaterally. The examiner also noted that the Veteran stated that his disability had significant effects on his occupational activities, and described the impact as having hearing difficulty. However, the Veteran also reported that there were no effects on his usual daily activities. The April 2013 VA examination indicated that the pure tone thresholds of each ear, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 6000 8000 RIGHT 20 25 20 30 50 85 90 LEFT 25 20 25 40 60 75 70 Pure tone threshold averages, based upon the results between 1000 and 4000 Hertz, were 31.25 decibels in the right ear and 36.25 decibels in the left ear. Speech discrimination scores were 86 percent in the right ear, and 68 percent in the left ear. The examiner diagnosed the Veteran with sensorineural hearing loss in both ears. The Veteran reported that his hearing loss impacted the ordinary conditions of his daily life, including his ability to work, because he could not hear many things. Applying the method for evaluating hearing loss to the results of the December 2010 VA audiological report reveals Level I in both ears. The April 2013 audiological test indicates the more severe results of Level II in the right ear and Level IV in the left ear, based upon the application of Table VI. Application of these findings to Table VII corresponds to noncompensable ratings under 38 C.F.R. § 4.85, DC 6100 for both of the examinations. Also, as pure tone threshold at each of the four specified frequencies has not been shown to be 55 decibels or more, and pure tone threshold at each of the four specified frequencies has not been shown to be 55 decibels or more, and pure tone threshold has not been shown to be 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the results do not reveal an exceptional pattern of hearing loss in either ear, and Table VIA should not be applied. See 38 C.F.R. § 4.86. There are no audiological evaluation results of record indicating a higher level of hearing loss since the April 2013 evaluation, and the Veteran has not indicated that any such evaluation results exist. The Veteran's wife and mother-in-law submitted statements in September 2013 discussing the impact of the Veteran's hearing loss on his daily life. The Veteran's wife stated that the Veteran's hearing loss kept him from understanding people on the phone, hearing his name called at the doctor's office, or listening to the television at an acceptable volume. She also reported that at times he was unable to hear his wife even when she is sitting right next to him. The Veteran's wife also noted that the Veteran had difficulty hearing his granddaughter, which caused her to believe that he was ignoring her. She also explained that the Veteran has trouble even when he is using his hearing aids. The Veteran's mother-in-law discussed the Veteran's difficulty hearing and understanding people speaking to him, which caused him to feel excluded. She also related a specific incident when the Veteran did not hear someone speaking to him at church. Both the Veteran's wife and mother-in-law noted that the Veteran's hearing loss negatively impacted his service-connected posttraumatic stress disorder (PTSD). The Veteran stated in his March 2011 notice of disagreement that his hearing was impaired to the point that he could not hear his wife speaking when she was three feet away from him. While the Board acknowledges the difficulties that the Veteran experiences as a result of his bilateral hearing loss, 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. Thus, the Board must base its determination on the audiological evaluation results of record, and is bound by law to apply VA's rating schedule based on such results. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013); see also Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating schedule does not indicate that the Veteran's hearing loss warrants a compensable rating. The Board must also consider whether the case should be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration. See 38 C.F.R. § 3.321(b). 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, which involves 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, the assigned schedular evaluation is adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the Veteran reported decreased hearing acuity causing communication problems, especially when speaking on the phone, as well as difficulty hearing his name called at the doctor's office. The Veteran received audiological examinations that appropriately measured the Veteran's hearing loss levels, both as indicated by audiometric testing at specified levels, and as measured by speech recognition test scores. The speech recognition testing is schedular rating criteria recognition of an inability to hear some words in normal conversation. Stated another way, the schedular criteria recognizes the communication difficulties that arise with hearing loss. In a similar manner, the puretone threshold scores recognizes that hearing loss means a Veteran may not hear certain sounds at times such as ordinary conversation or hearing one's name called out. The Board notes that the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Table VI was chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability. The Veteran has not asserted and the Board has not found any reason to doubt the accuracy of the audiological examinations. Additionally, the findings appropriately apply to the criteria set forth in the Rating Schedule. As the Veteran's hearing loss was appropriately measured and applied, the Board finds that the Rating Schedule contemplates all aspects of his disability, so that referral for extraschedular consideration is not warranted regarding the claim for increased rating for bilateral hearing loss. Even if the Veteran's hearing loss was not adequately contemplated by the rating schedule, an extraschedular rating would still not be appropriate in this case. The record reflects that the Veteran has not required frequent hospitalizations as a result of his hearing loss, and although the Veteran noted that his hearing loss impacted his ability to work, the evidence of record does not reflect marked interference with employment due to his hearing loss that would merit an extraschedular rating. The Veteran submitted a TDIU claim in July 2013, in which he stated that service connected arthritis and PTSD prevented him from following any substantially gainful occupation, but notably did not include hearing loss in the list. He also wrote that he left his previous employment because he was unable to get along with his new manager. The Veteran did not indicate that his hearing loss contributed to his unemployability anywhere in the TDIU claim. Therefore, the Board concludes that the Veteran's lack of employment is not the result of his hearing loss. In sum, the Board has determined that there are no unusual or exceptional factors in this case warranting the referral of the claim for extraschedular consideration. Finally, the Board is cognizant of the ruling in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the United States Court of Appeals for Veterans Claims held that a claim for a total rating based on unemployability due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, although the Veteran noted in his April 2013 VA examination that his hearing loss affected his ability to work, he did not state in his outstanding TDIU claim, nor does the record otherwise reflect, that his hearing loss renders him totally unemployable. Accordingly, the Board concludes that a claim for TDIU based on the Veteran's hearing loss has not been raised in conjunction with the Veteran's claim for an increased rating for hearing loss, although, as noted above, the Veteran has filed a claim for entitlement to TDIU in July 2013 that has not yet been adjudicated, and is referred to the RO. Thus, the Board finds that the criteria for an initial compensable rating for the Veteran's bilateral hearing loss have not been met at any time. Accordingly, there is no basis for staged rating of the Veteran's bilateral hearing loss pursuant to Fenderson, and a higher rating must be denied. In reaching this conclusion, the Board has considered the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) ; 38 C.F.R. §§ 3.102 , 4.3 (2013); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs