Citation Nr: 1339792	
Decision Date: 12/03/13    Archive Date: 12/18/13

DOCKET NO.  12-06 402	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

1.  Entitlement to an evaluation in excess of 40 percent for bilateral hearing loss.

2.  Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

P. Olson, Counsel



INTRODUCTION

The Veteran had active military service from September 1961 to September 1963.

This matter was originally on appeal to the Board of Veterans' Appeals (Board) from a March 2011 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Louisville, Kentucky.  In May 2013, the Board remanded the claim for further development.

At the time of the remand the matter concerned the propriety of a rating reduction.  While in Remand status, the 40 percent rating was restored for the period of the reduction.  Thus the remaining certified issue concerns whether a higher rating is in order.

The Court of Appeals for Veterans Claims (Court) has determined that where, as here, a claimant, or the record raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for TDIU.  Rice v. Shinseki, 22 Vet. App. 447, 453-455 (2009).  In his post-remand brief, the Veteran indicates that the examiner noted that the Veteran's hearing loss impacted ordinary conditions of daily life including his ability to work.  As such, the Board has added a TDIU claim as an issue on appeal. Further development is needed to properly adjudicate the TDIU claim.

This appeal was processed using the Virtual VA paperless claims processing system.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO through the Appeals Management Center (AMC) in Washington, DC.

FINDING OF FACT

At its worst, the Veteran's bilateral hearing loss has been productive of Level VI hearing impairment in the right ear and Level IX hearing impairment in the left ear.


CONCLUSION OF LAW

The criteria for an evaluation in excess of 40 percent for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.85-4.87, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Preliminary Matter

Pursuant to the Board's May 2013 Remand, the Appeals Management Center obtained outstanding VA treatment records, scheduled the Veteran for a VA audio examination, readjudicated the claim under provision of the Veterans Claims Assistance Act of 2000 as discussed in more detail below, and issued a Supplemental Statement of the Case.  Based on the foregoing actions, there has been compliance with the Board's May 2013 Remand.  Stegall v. West, 11 Vet. App. 268 (1998).

Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met.  There is no issue as to providing an appropriate application form or completeness of the application.  VA notified the Veteran in June 2010 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined.  The case was most recent readjudicated in July 2013. 

VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations.  There is no evidence that additional records have yet to be requested, or that additional examinations are in order.

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

The Veteran is appealing the original assignment of a disability evaluation following an award of service connection for right ear hearing loss.  As such, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found.  Fenderson v. West, 12 Vet. App. 119 (1999).

In addition, when, as here, the Veteran is requesting a higher rating for an already established service-connected left ear hearing loss, the present disability level is the primary concern and past medical reports do not take precedence over current findings.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  However, "staged" 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.  Hart v. Mansfield, 21 Vet. App. 505 (2007)

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 pure tone 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 pure tone 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 pure tone 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 pure tone decibel loss.  The percentage evaluation is found from Table VII in 38 C.F.R. § 4.85  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 pure tone 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 pure tone 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. 

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 evaluation in excess of 40 percent for bilateral hearing loss.  

On VA audiological assessment in July 2010, pure tone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
N/A
45
70
70
85
LEFT
N/A
40
80
90
105

The average of the pure tones between 1000-4000 Hz was 68 decibels for the right ear and 79 decibels for the left ear.  Speech audiometry revealed speech recognition ability of 72 percent in the right ear and of 48 percent in the left ear. 

Using Table VI in 38 C.F.R. § 4.85, the Veteran received numeric designations of VI for the right ear and IX for the left ear.  Level VI hearing acuity in the right ear and level IX hearing acuity in the left ear equates to a 40 percent evaluation.  38 C.F.R. § 4.85, Table VII. 

On VA audiological assessment in March 2011, pure tone thresholds, in decibels, were as follows: 





HERTZ



500
1000
2000
3000
4000
RIGHT
N/A
40
70
75
75
LEFT
N/A
40
75
90
105

The average of the pure tones between 1000-4000 Hz was 65 decibels for the right ear and 78 decibels for the left ear.  Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 72 percent in the left ear. 

Using Table VI in 38 C.F.R. § 4.85, the Veteran received numeric designations of III for the right ear and VI for the left ear.  Level III hearing acuity in the right ear and level VI hearing acuity in the left ear equates to a 10 percent evaluation.  38 C.F.R. § 4.85, Table VII. 

On VA audiological assessment in June 2013, pure tone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
N/A
45
75
75
80
LEFT
N/A
45
75
90
90

The average of the pure tones between 1000-4000 Hz was 69 decibels for the right ear and 75 decibels for the left ear.  Speech audiometry revealed speech recognition ability of 72 percent in the right ear and of 48 percent in the left ear. 

Using Table VI in 38 C.F.R. § 4.85, the Veteran received numeric designations of VI for the right ear and IX for the left ear.  Level VI hearing acuity in the right ear and level IX hearing acuity in the left ear equates to a 40 percent evaluation.  38 C.F.R. § 4.85, Table VII. 

The Board has also considered whether the provisions of 38 C.F.R. § 4.86 pertaining to exceptional hearing impairment apply in the Veteran's case; however, his hearing acuity in July 2010, March 2011, and March 20133 did not meet the pattern of exceptional hearing impairment. 

Applying the foregoing medical evidence to the rating criteria for hearing impairment, the Board concludes that the currently assigned 40 percent rating for bilateral hearing loss is appropriate.  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.  Lendenmann, 3 Vet. App. at 349.  On the basis of the objective evidence, the Veteran's hearing loss disability simply does not support the requirements for a rating in excess of 40 percent. 

In reviewing the foregoing, the Board has been cognizant of the "benefit of the doubt" rule.  The preponderance of the evidence, however, is against the Veteran's claim for a rating in excess of 40 percent and, as such, this case does not present such a state of balance between the positive evidence and the negative evidence to allow for a favorable determination.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Board is aware that an extraschedular rating is a component of an increased rating claim.  Barringer v. Peake, 22 Vet. App. 242 (2008); see Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  The threshold factor for extraschedular consideration is a finding on the 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.  Thun v. Peake, 22 Vet. App. 111 (2008); see Fisher v. Principi, 4 Vet. App. 57, 60 (1993); 38 C.F.R. § 3.321(b)(1).  If so, factors for consideration in determining whether referral for an extraschedular rating is warranted include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable.  Thun, citing 38 C.F.R. § 3.321(b)(1) (2008).  In the present case, the Board finds no evidence that the Veteran's service-connected hearing loss presents such an unusual or exceptional disability picture at any time so as to require consideration of an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1).  

The criteria pertaining to hearing loss in the Rating Schedule focus on loss in hearing acuity as measured by pure tone threshold average and speech discrimination.  At the June 2013 VA examination, the Veteran reported having trouble hearing his wife, the TV, and voices over his cell phone.  Such symptomatology can be adequately measured by pure tone threshold average and speech discrimination testing.  Thus, it appears that the schedular criteria adequately compensate for any loss in earning capacity, and referral for extraschedular consideration is not warranted.  Id. 


ORDER

Entitlement to an evaluation in excess of 40 percent for bilateral hearing loss is denied.


REMAND

As the evidence of record indicates that the Veteran has employment limitations due to his bilateral hearing loss disabilities, the Board finds that a claim of entitlement to a TDIU has been raised.  Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009).  He has a combined 60 percent disability rating for bilateral hearing loss, tinnitus, chronic otitis media, and chronic otitis externa.

The Court has held that in the case of a claim for a TDIU, the duty to assist requires that VA obtain an examination that includes an opinion on what effect a Veteran's service-connected disability has on his ability to work.  Friscia v. Brown, 7 Vet. App. 294, 297 (1994).

Although the examinations, as indicated above, provided discussion of the effects the Veteran's hearing loss has his ability to work, no opinion has been rendered regarding whether the Veteran's service-connected impairments rendered him unemployable at any point during the period on appeal.  Overall functional impairment in an employment setting was not discussed.  As such, the Board finds it necessary to afford the Veteran another VA medical examination.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  Schedule the Veteran for a VA TDIU examination to determine the nature, extent and severity of all his service-connected disabilities.  The claims file must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made.  All pertinent symptomatology and findings should be reported in detail.  Any indicated diagnostic tests and studies should be accomplished.

Based on examination findings and other evidence contained in the claims file, the examiner must fully describe all functional impairments due to service connected disabilities and discuss how or whether they would interfere with the ability to obtain or retain employment.  His educational background and work experience should be determined, to include any employment from which he has recently departed.

To the extent possible, the examiner should distinguish symptoms and impairment attributable to the Veteran's service-connected disorders from those attributable to any other diagnosed disorders.

The examiner is requested to provide a complete rationale for his or her opinion, based on his or her clinical experience and medical expertise.

2.  The appellant's employment history should be developed if needed.  This should include contact with previous employers as indicated, to ascertain reasons for leaving employment.  All appropriate notice and development of the claim should also be accomplished while this issue is in remand status.

3.  If the benefit sought is not granted in full, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.
 
The appellant has the right to submit additional evidence and argument on the matter or matters 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).


______________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs