Citation Nr: 1340161	
Decision Date: 12/05/13    Archive Date: 12/20/13

DOCKET NO.  12-16 637	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to an initial compensable rating for bilateral hearing loss disability. 


REPRESENTATION

Appellant represented by:	North Carolina Division of Veterans Affairs


ATTORNEY FOR THE BOARD

W. R. Stephens, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1965 to December 1989.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which granted service connection for bilateral hearing loss with a 0 percent evaluation.

The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA and VBMS systems to ensure review of the totality of the evidence.


FINDINGS OF FACT

The Veteran's hearing is manifested by no more than Level I hearing acuity bilaterally.


CONCLUSION OF LAW

The criteria for a disability rating in excess of 0 percent for bilateral hearing loss disability have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. VA's Duty to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013).

VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant.  Pelegrini v. Principi, 18 Vet. App. 112  (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3).

The Veteran in this case is challenging the initial evaluation assigned following the grant of service connection for his bilateral hearing loss disability.  In Dingess v. Nicholson, 19 Vet. App. 473 (2006), 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.  See also VAOPGCPREC 8- 2003 (December 22, 2003).  Thus, because service connection has already been granted, VA's notice obligations with respect to the issue of entitlement to a higher initial evaluation for bilateral hearing loss disability are fully satisfied, and any defect in the notice is not prejudicial.  See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  In any event, the Board notes that the RO provided the Veteran with adequate notice in a July 2009 letter.

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records (STRs) and VA medical records are in the file.  The Veteran has not indicated private treatment for his bilateral hearing loss disability.  The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. 

With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran.  See Green v. Derwinski, 1 Vet. App. 121 (1991).  In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2013).

The RO provided the Veteran an appropriate VA audiology examination most recently in November 2010.  The examination report includes sufficient findings to rate the Veteran's hearing loss disability under the appropriate rating criteria.  In evaluating the adequacy of the examination report, the Board observes that in Martinak v. Nicholson, 21 Vet. App. 447  (2007), the Court of Appeals for Veterans Claims (Court) noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities.  See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2012).  In the present case, the November 2010 examiner elicited information from the Veteran concerning the functional effects of his disability, and the Veteran has not identified any evidence in the record indicating that there was any prejudice as a result of the examination.  Martinak¸ 21 Vet. App. at 455-56.  Thus, the Board concludes that the examination report is adequate for purposes of rendering a decision in the instant appeal. See 38 CF.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312  (2007).  In addition, the Board notes that the November 2010 examination was approximately three years ago, however, the Veteran has not claimed that his hearing loss disability has worsened since the date of that examination.  As a result, the Board does not believe a new examination is necessary at this time.

Additionally, there is no indication in the record that any additional 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, the Board finds that 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). 

II. Applicable Laws and Regulations

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities.  The Schedule 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.  When two evaluations are potentially applicable, VA will assign the higher evaluation when the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  VA will resolve reasonable doubt as to the degree of disability in favor of the Veteran.  38 C.F.R. § 4.1.  If the evidence for and against a claim is in equipoise, the claim will be granted.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).  Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 

In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  As a result, a complete medical history of the Veteran is required for a ratings evaluation.  This is in order to protect claimants against adverse decisions based on a single, incomplete, or inaccurate report and to enable VA to make a more precise evaluation.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  In addition, VA has a duty to acknowledge and consider all regulations which are potentially applicable, and to explain the reasons and bases for its conclusions. 

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance.  Hart v. Nicholson, 21 Vet. App. 505, 509 (2007).  Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id.

In general, to evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness.  38 C.F.R. §§ 4.85, 4.87, Tables VI, VIa, VII.  Organic impairment of hearing acuity is measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by a pure tone audiometry test in the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second.  See 38 C.F.R. § 4.85(a), (d). Ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  The schedular evaluations are intended to make proper allowance for improvement by hearing aids. 38 C.F.R. § 4.86.

Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86. Specifically, an exceptional pattern of hearing loss is hearing loss of 55 decibels or more in each of the four specified frequencies (i.e. 1000, 2000, 3000, and 4000 Hertz), and hearing loss with a pure tone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(a),(b).

III. Schedular Analysis 

After carefully reviewing the evidence of record, the Board finds that the preponderance of the evidence is against an initial evaluation in excess of 0 percent for bilateral hearing loss disability.  The evidence of record does not more nearly reflect the criteria for a compensable evaluation.  38 C.F.R. § 4.7.

At the Veteran's November 2010 VA examination, pure tone thresholds, in decibels, and Maryland CNC speech discrimination results were as follows:


HERTZ
CNC

1000
2000
3000
4000
Avg

 
RIGHT
30
40
40
40
37.5
96%
 
LEFT
30
65
55
55
51.25
96%
 

Applying 38 C.F.R. § 4.85, Table VI, to the above audiological findings, the Veteran has a numeric designation of I for his right ear and I for his left ear.  Application of 38 C.F.R. § 4.85, Table VII, results in a finding that a 0 percent disability evaluation for the service-connected bilateral hearing loss is warranted.

The pure tone thresholds for the November 2010 examination do not reflect an exceptional pattern of hearing loss as contemplated by 38 C.F.R. § 4.86(a) because the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is not 55 decibels or more; and as such, that provision is inapplicable.  Additionally,  an exceptional pattern of hearing loss as contemplated by 38 C.F.R. § 4.86(b) is not warranted as the documented pure tone thresholds for the Veteran are not 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, and thus, neither Table VI or Table Via is applicable under this regulation.  38 C.F.R. § 4.86(b).

To the extent that the Veteran reports that his acuity is worse than evaluated, the Board has considered his statements.  This evidence is both competent and credible in regard to reporting worsening hearing acuity.  However, far more probative of the degree of the disability are the results of testing prepared by skilled professionals since the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss.  In essence, lay statements are of limited probative value.  As a layperson, the Veteran is competent to report difficulty with his hearing; however, he is not competent to assign particular speech recognition scores or puretone decibel reading to his current acuity problems.  As indicated above, ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry.  See Lendenmann, supra.

Accordingly, the claim for a compensable evaluation for hearing loss disability is denied.  Absent a relative balance of the evidence, the evidence is not in equipoise and the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49  (1990).  The Board believes that a uniform disability evaluation is warranted.  Because the disability has not met the criteria for a higher evaluation at any time during the appeal period, there is no basis for a staged rating.  See Hart, supra.

IV. Extraschedular Consideration

Under Floyd v. Brown, 9 Vet. App. 88, 95  (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance.  See also VAOPGCPREC 6-96.  However, the Board can address the matter of referral of a disability to appropriate VA officials for such consideration. 

Under the applicable criteria, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1); see also Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

As noted previously, in Martinak v. Nicholson, 21 Vet. App. 447, 453-4  (2007), the Court held that a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report of the examination to facilitate determinations regarding extraschedular consideration.  The Court noted that, unlike the rating schedule for hearing loss disability, 38 C.F.R. § 3.321(b) does not rely exclusively on objective test results to determine whether an extraschedular rating is warranted.  See Martinak, 21 Vet. App. at 455. 

The November 2010 VA examiner noted that the Veteran reported significant effects on his occupation due to hearing difficulty.  The Veteran reported that his hearing loss disability did not have an effect on usual daily activities.  As previously noted, the examiner did elicit information from the Veteran concerning the functional effects of his disability.  The Veteran has not identified any evidence indicating that a referral for extraschuedular rating is warranted, and it is not the duty of VA to "read the mind of the Veteran."  Martinak, 21 Vet. App. at 455; Cintron v. West, 13 Vet. App. 251, 259 (1999).  As a result, the Board finds that the VA examination report is in compliance with Martinak, and that the evidence of record is sufficient for the Board to consider whether referral for an extraschedular rating is warranted under 38 C.F.R. § 3.321(b).

Under Thun v. Peake, 22 Vet App 111  (2008), decided after the Court's decision in Martinak, there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture involves factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating.
With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected bilateral hearing loss disability is inadequate.  A comparison between the levels of severity and symptomatology of the Veteran's hearing loss with the established criteria found in the rating schedule for hearing loss shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology; as discussed above, the rating criteria considers puretone decibel hearing loss and speech discrimination hearing loss.

Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot. Regardless, the Board observes that, even if the available schedular evaluation for the Veteran's hearing loss disability were inadequate [which it manifestly is not], the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms," nor does he contend that he does. 

The Board has been unable to identify an exceptional or unusual disability picture, and neither has the Veteran.  As noted above, the Veteran has reported that he has difficulty hearing.  This functional effect caused by the Veteran's hearing loss disability, which the Board does not dispute, does not constitute any exceptional or unusual disability picture warranting consideration of an extraschedular rating.

In short, there is nothing in the record to indicate that the Veteran's service-connected hearing loss disability causes impairment with employment over and above that which is contemplated in the assigned schedular rating.  The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.

In this case, the manifestations of the disability are contemplated by the schedular criteria governing hearing loss disability.  Therefore, referral for extra-schedular consideration is not warranted.


ORDER

Entitlement to an initial rating for bilateral hearing loss in excess of 0 percent is denied.




____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs