Citation Nr: 1340503 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 09-42 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a compensable rating for the period prior to June 12, 2013, and to a rating higher than 10 percent for the period thereafter, for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1953 to March 1955. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board remanded this claim in June 2012 so that a hearing could be scheduled, which the Veteran did not attend. His hearing request is considered withdrawn. 38 C.F.R. § 20.704(d) (2013). His claim was remanded in April 2013 so that the RO could initially review evidence the Veteran submitted after certification of the claim to the Board, and so that he could attend a VA examination. Finally, in August 2013, the Board remanded the claim and directed the RO to gather more information from the Veteran's private physicians. This appeal was processed using the Veterans Benefit Management System (VBMS), a paperless processing system. Accordingly, any future consideration of this Veteran's case must 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). FINDINGS OF FACT 1. For the period prior to June 12, 2013, the Veteran's hearing loss was manifested by Level III acuity in the right ear, and Level II acuity in the left ear. 2. For the period beginning on June 12, 2013, the Veteran's hearing loss was manifested by Level IV acuity in both ears. CONCLUSION OF LAW The criteria for a compensable rating prior to June 12, 2013, and for a rating higher than 10 percent thereafter, for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102 , 3.159, 3.321, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. See Gonzales, 218 F.3d at 1380-81. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Id. The Board must assess the competency and credibility of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Id. Veterans Claim Assistance Act (VCAA) The VCAA provides that 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of what is needed to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2013). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and, (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). A notice detailing the evidence needed to prove a claim for an increased rating was sent in November 2007, prior to the initial March 2008 rating decision. The Veteran has not alleged any prejudicial error in the notice provided. The VCAA also provides for a duty to assist the claimant in the development of the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). In this case, the Veteran's private medical records have been obtained and associated with the file. He attended VA examinations in February 2008 and June 2013, and a supplemental medical opinion interpreting the private audiograms was obtained in September 2013. The Board finds that these examination reports contain findings that are adequate to adjudicate the Veteran's appeal for higher disability ratings. Accordingly, the Board finds that VA's duty to assist with respect to development of the claim has been met. 38 C.F.R. § 3.159(c)(4) (2013); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that there has been substantial compliance with its June 2012, April 2013, and August 2013 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran was scheduled for, but did not attend, a personal hearing, and he did not ask for it to be rescheduled. He attended a VA examination. Finally, the RO asked his private treatment providers to interpret the private audiograms submitted by the Veteran, and to indicate whether the Maryland CNC test was used. A response from G. Audiology regarding the November 2009 hearing test was received, but O.P. Medical did not response regarding the December 2010 hearing test. The Veteran was notified in September 2013 that two requests had been made for the requested information, but that he was ultimately responsible for obtaining it. To date, no response has been received from O.P. Medical or the Veteran. Increased Rating The Veteran contends that private hearing tests conducted in 2009 and 2010 contain results that entitle him to a 10 percent rating starting from December 2009. For the reasons that follow, a higher disability rating for bilateral hearing loss is not warranted until June 2013. 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 Diagnostic Codes (DCs). 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 DC, 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 DCs. 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. 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); AB v. Brown, 6 Vet. App. 35 (1993); Hart v. Mansfield, 21 Vet. App. 505 (2007). Impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Examinations for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85(a). Once a disability is established, a numeric designation of hearing impairment is determined for each ear by applying the puretone threshold average and Maryland CNC percentage scores to Table VI ("Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination"), resulting in a Roman numeral designation. 38 C.F.R. § 4.85(b), Table VI. Disability ratings are then assigned by combining the level of hearing loss in each ear in Table VII ("Percentage Evaluation for Hearing Impairment"). 38 C.F.R. § 4.85(e), Table VII. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Table VI is generally used to determine the Roman numeral designation (I through XI) for hearing impairment in each ear, unless the examiner certifies that use of the speech discrimination test is not appropriate. In that case, Table VIa ("Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average") is used. 38 C.F.R. § 4.85(c). Table VIa may also be used in when the puretone thresholds for each of the four frequencies 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the puretone threshold is 30 decibels or lower at 1000 Hertz, and 70 decibels or higher at 2000 Hertz. 38 C.F.R. § 4.86. The Veteran's bilateral hearing loss is currently assigned a compensable 10 percent rating for the period starting June 12, 2013, under DC 6100. 38 C.F.R. §§ 4.85, DC 6100. His rating is noncompensable prior to June 12, 2013. At the February 2008 VA examination, an audiogram recorded the following puretone thresholds, in decibels: HERTZ Feb. 2008 500 1000 2000 3000 4000 RIGHT 10 20 50 75 85 LEFT 10 20 45 65 75 His Maryland CNC test scores were 84 percent for each ear. A November 2009 private audiogram from G. Audiology, with numerical values provided in August 2013, recorded the following puretone thresholds, in decibels: HERTZ Nov. 2009 500 1000 2000 3000 4000 RIGHT 15 35 60 75 90 LEFT 15 30 65 65 70 Speech recognition scores, using the NU-6 Word List, were 72 percent for each ear. A December 2010 private audiogram from O.P. Medical, which was interpreted into numerical values by the June 2013 VA examiner, recorded the following puretone thresholds, in decibels: HERTZ Dec. 2010 500 1000 2000 3000 4000 RIGHT 20 35 65 75 85 LEFT 20 30 60 70 75 Speech recognition scores were listed as 88 percent for the right ear and 92 percent for the left ear. At the June 2013 VA examination, the Veteran's puretone thresholds, in decibels, were recorded as follows: HERTZ June 2013 500 1000 2000 3000 4000 RIGHT 15 35 70 85 90 LEFT 10 45 65 75 75 His Maryland CNC scores were 76 percent for each ear. The Veteran indicated that hearing loss impacted his ordinary conditions of life, specifying in his own words that it was getting worse. The examiner opined that his hearing loss would not affect his ability perform all types of sedentary any physical employment. Based on the foregoing collective body of evidence, an increased rating is not warranted at any time during the period under consideration. Applying the results of his February 2008 VA examination audiogram to Table VI of the Schedule for Rating Disabilities yields a Roman numeral value of III in the right ear and II in the left ear. Applying these values to Table VII results in a noncompensable (0 percent) evaluation. In applying his June 2013 results to Table VI, his right and left ear both have a Roman numeral value of IV, which result in a 10 percent rating under Table VII. The Veteran has asserted that his private hearing tests reveal a level of hearing comparable to that shown on the June 2013 VA examination, and that he is entitled to a compensable rating from November 2009. The June 2013 VA examiner similarly opined in her examination report that the June 2013 results were consistent with the November 2009 and December 2010 results, and that the rating criteria would be applicable to the earlier examinations. Unfortunately, that is not the case. Ratings for hearing loss are determined by a "mechanical application" of the rating schedule. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The rating schedule requires use of the Maryland CNC test, unless the examiner certifies that use of a word recognition test is inappropriate, which is not the case here. 38 C.F.R. § 4.85(c). Efforts were made to determine what word list was used in the December 2010 private audiogram from O.P. Medical, and no response was received from the practitioner or the Veteran after two attempts. Savage v. Shinseki, 24 Vet App. 259 (2011) (VA may not reject a private audiological evaluation for failure to apply the Maryland CNC Test without first making a diligent effort to determine whether it was applied). None of the Veteran's puretone results, from any of his hearing tests, show an exception pattern of loss that would allow application of Table VIa. 38 C.F.R. § 3.86. The Veteran has not asserted any functional effects of his hearing that affect the ordinary conditions of his life, except to assert that his hearing loss was increased in June 2013, which it was. The Board does not find any basis for referral for consideration of an extraschedular rating in this case. 38 C.F.R. § 3.321(b)(1). As indicated, he has not presented any evidence that his hearing loss results in a unique disability that is not addressed by the rating criteria, and the examiner has opined that it would not prevent him from working. Further, there is no evidence that it has negatively impacted employment or necessitated hospital stays. The Board finds that application of the rating criteria adequately and reasonably describes his disability level and symptomatology. Thus, there is no basis for referral of the case for consideration of an extraschedular disability evaluation. See Thun v. Peake, 22 Vet. App 111, 115-16 (2008). There is no evidence that suggests the Veteran is unemployable due to his hearing loss, thus a claim for a total disability rating due to individual unemployability (TDIU) has not been raised. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). For the foregoing reasons, the Board finds that the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, this doctrine is inapplicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER The claim of entitlement to a compensable rating for the period prior to June 13, 2013, for bilateral hearing loss is denied. The claim of entitlement to a disability rating higher than 10 percent for the period beginning on June 13, 2013, for bilateral hearing loss is denied. ______________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs