Citation Nr: 1340489 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 10-02 030 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased rating in excess of 10 percent for service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from September 1945 to December 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board previously remanded this matter in June 2013. The development included obtaining a VA examination, obtaining outstanding VA treatment records and requesting that the Veteran identify any other pertinent records. The Veteran's VA treatment records have been obtained and associated with the record. In July 2013, the RO sent the Veteran a letter requesting that he identify any additional healthcare providers who treated him for hearing loss. He did not respond. A VA examination was scheduled. In September 2013, the RO contacted the Veteran and the Veteran indicated that he would not be able to attend the examination due to illness, his being bedridden, and his inability to leave the assisted living facility. Although the Veteran indicated he would be unable to report for the VA examination, he was given the opportunity to submit alternative forms of evidence to support his claim, to include private medical evidence. He did not do so. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As the Veteran has indicated he is not able to present for a VA examination, the Board has no alternative but to proceed with a review of his claim. There was substantial compliance with the remand, and an additional remand is not necessary, in light of the Veteran's statement indicating that he cannot attend an examination. Stegall v. West, 11 Vet. App. 268 (1998). This appeal was processed using the 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) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT During the appeal period, the Veteran had no worse than Level V hearing acuity in the left ear and Level III hearing acuity in the right ear. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.85, Diagnostic Code 6100 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). In a claim for an increased rating, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The information required by Vazquez was provided in a February 2009 letter. This letter notified the Veteran of what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. This letter included provisions for disability ratings and effective dates. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence, including affording VA examinations. The Veteran's service treatment records are not available. The RO made a formal finding of unavailability in September 2012 regarding the service treatment records. VA treatment records have been obtained and associated with the claims file. In a July 2013, the RO requested that the Veteran identify any additional pertinent treatment records. No additional treatment records were identified by the Veteran. VA provided the Veteran with examinations in February 2009, September 2009 and March 2012. To that end, 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 February 2009 and September 2009 provided findings sufficient to rate the Veteran's hearing loss disability, including audiograms and speech discrimination scores using the Maryland CNC test. The March 2012 VA examination provided audiometric findings but did not include speech discrimination scores. The Board determined that the March 2012 VA examination was not adequate because the VA examiner did not explain the finding, noted in the examination report, that the Veteran's speech discrimination scores were unreliable. Pursuant to the Board's June 2013 remand, the Veteran was scheduled for another VA examination. The RO contacted the Veteran and the Veteran indicated that he could not attend an audiological examination due to his health. In light of the Veteran's reported inability to attend a VA examination due to illness, the Board finds that there is good cause in this case as to why the Veteran was unable to appear for an examination, and the Board will rate the claim based upon the record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. II. Analysis of Claim Increased Rating for Bilateral Hearing Loss Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2013). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). 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 concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from up to one year prior to the time the increased rating was filed until the final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. A July 2008 rating decision granted service connection for hearing loss and assigned a 10 percent evaluation, effective from March 2006. A claim for an increased rating was received in January 2009. The Veteran's hearing loss disability has been evaluated pursuant to 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100 (2013). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold level, as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. The rating schedule establishes 11 auditory acuity levels designated from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85 (2013). The degree of disability resulting from service-connected defective hearing is mechanically determined by applying the numeric designations assigned to the rating schedule after audiometric evaluations are conducted. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Results of the evaluations are analyzed using Tables VI, VIA and VII, identified in 38 C.F.R. § 4.85. 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 under 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 then be evaluated separately. 38 C.F.R. § 4.86(b) (2013). Where there is an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86, the rating may be based solely on puretone threshold testing. An exceptional pattern of hearing impairment occurs when the puretone thresholds in each of the four frequencies 1000, 2000, 3000, and 4000 Hertz are 55 decibels or greater, or when the puretone threshold at 1000 Hertz is 30 decibels or less and the threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86(a), (b). The Board finds that the criteria of 38 C.F.R. § 4.86 are not met in this case. Therefore, the rating criteria at 38 C.F.R. § 4.86 for exceptional hearing impairment do not apply. The Veteran had a VA examination in July 2008. Audiological testing obtained the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 LEFT 25 30 55 75 80 RIGHT 15 20 45 60 70 The average puretone thresholds were 49 decibels for the right ear and 60 decibels for the left ear. Speech recognition scores were 76 percent for the right ear and 68 percent for the left ear. Applying these values to Table VI, a numeric designation of III is obtained for the right ear, and a numeric designation of V is obtained for the left ear. Table VII provides that a 10 percent rating is assignable based upon those numeric designations. The Veteran had a VA examination in February 2009. Audiological testing obtained the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 LEFT 20 35 65 80 75 RIGHT 20 20 50 65 65 The average puretone thresholds were 50 decibels for the right ear and 63.75 decibels for the left ear. Speech recognition scores were 76 percent for the right ear and 88 percent for the left ear. Applying the puretone thresholds and speech discrimination scores obtained from the February 2009 examination to Table VI, a numeric designation of IV is obtained for the right ear. A numeric designation of III is obtained for the left ear. Table VII provides that a 10 percent rating is assignable for those values. The Veteran had a VA examination in September 2009. Audiological testing obtained the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 LEFT 25 35 65 65 70 RIGHT 15 25 55 65 65 The average puretone thresholds were 58.75 decibels for the left ear and 52.5 decibels for the right ear. The Veteran had speech recognition scores of 94 percent in both ears. When the puretone threshold values and speech discrimination scores obtained from the September 2009 examination are applied to Table VI, a numeric designation of Level II is obtained for the left ear. A numeric designation of Level I is obtained for the right ear. Table VII provides that a non-compensable (zero percent) evaluation is assignable for these designations. The Veteran had a VA examination in March 2012. Audiological testing obtained the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 LEFT 30 40 70 80 80 RIGHT 10 25 55 60 65 The average puretone thresholds were 67.5 decibels for the left ear and 51.25 decibels for the right ear. The VA examiner indicated that speech discrimination scores for both ears were "too unreliable to score." The VA examiner stated that speech discrimination scores did not accurately reflect the Veteran's ability to hear. The VA examiner noted that previous testing revealed 94 percent speech discrimination scores bilaterally at a level of 65 decibels. The VA examiner indicated that the Veteran was tested at a higher level, and his speech discrimination scores should not be rated on. The examiner also noted that the Veteran was very fatigued. The examiner stated that the Veteran should be rated on puretone thresholds only. In the prior Board remand, the Board determined that the March 2012 VA examination was inadequate because the VA examiner did not explain the decision to disregard the speech discrimination scores. Nevertheless, the Board has also considered the March 2012 audiological findings for the purpose of determining whether the puretone thresholds provide a basis for a higher rating. Ratings based upon puretone thresholds only are assigned based upon Table VIA. A puretone threshold of 67.5 decibels is assigned a numeric designation of V. A puretone threshold of 51.25 is assigned a numeric designation of III. Table VII provides that a 10 percent rating is warranted for those numeric designations. As noted previously, the Veteran did not report for a VA examination scheduled in August 2013. In a September 2013, the Veteran informed the RO that he could not attend the examination because of illness. Therefore, the Board has rated the claim upon the evidence of record. 38 C.F.R. § 3.655(b). Based upon the foregoing, during the appeal period, the Veteran has had no worse than Level V hearing acuity for the left ear and Level III acuity for the right ear during the appeal period. Accordingly, the criteria for an increased rating in excess of 10 percent for bilateral hearing loss are not met. In reaching this determination, the Board has considered the benefit of the doubt. As there is a preponderance of the evidence against the claim, reasonable doubt may not be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Extraschedular Considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). 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. Therefore, initially, 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. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, 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, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related 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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. In this case, the schedular rating criteria contemplate the impairment associated with the Veteran's hearing loss. The schedular rating criteria for hearing loss specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns which are not demonstrated in this case, and as measured by both audiological testing and speech recognition testing. In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court noted that, unlike the rating schedule for hearing loss, the extraschedular provisions did not rely exclusively on objective test results to determine whether referral for an extraschedular rating was warranted. The 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 February 2009 VA examination noted that the effect of the Veteran's hearing disability on his occupation and daily activities included that the type and degree of hearing loss make it difficult to discriminate normal conversational speech, especially when background noise is present. The September 2009 VA examination noted occupational effects of hearing difficulty. The Board finds that the schedular rating criteria are adequate to rate the Veteran's hearing loss disability, and there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. Accordingly, the Board finds that the criteria for referral for extraschedular rating have not been met. 38 C.F.R. § 3.321(b)(1). ORDER A rating in excess of 10 percent for bilateral hearing loss is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs