Citation Nr: 1340568 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 10-44 183A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an increased disability rating for bilateral hearing loss in excess of 30 percent prior to January 30, 2013 and in excess of 10 percent from January 30, 2013. REPRESENTATION Veteran represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD Michael J. Adams, Associate Counsel INTRODUCTION The Veteran had active service from January 1968 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In a February 2013 rating decision, the RO reduced the Veteran's disability rating for bilateral hearing loss from 30 percent to 10 percent, effective January 30, 2013. The issue has therefore been characterized as a staged increased rating claim, to include entitlement to an increase in excess of 30 percent prior to January 30, 2013, and entitlement to an increase in excess of 10 percent from January 30, 2013. FINDING OF FACT The most probative evidence demonstrates that the Veteran's hearing loss is manifested by no more than level II hearing impairment in the right ear and no more than level VIII hearing impairment in the left ear during the entire period on appeal. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent prior to January 30, 2013 for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2013). 2. The criteria for a disability rating in excess of 10 percent from January 30, 2013 for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). 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). Here, the RO provided notice to the Veteran in January 2010, prior to the initial adjudication of the claim by the AOJ in February 2010. The Veteran was notified of the evidence not of record that was necessary to substantiate the claims, as well as of VA and the Veteran's respective duties for obtaining evidence. The January 2010 notice letter also informed the Veteran how disability ratings and effective dates are assigned. Thus, the Board concludes that VA satisfied its duty to notify the Veteran. VA satisfied its duty to assist the Veteran in the development of his claim. First, VA satisfied its duty to seek, and assist in the procurement of, relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA treatment records, VA examination reports, and lay statements. The Veteran has not reported receiving any private treatment for his bilateral hearing loss. Second, VA satisfied its duty to obtain a medical opinion when required. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a). The Veteran was provided with VA examinations (the reports of which have been associated with the claims file) in February 2010 and January 2013. Prior to the January 2013 VA examination, the Veteran asserted that his service-connected bilateral hearing loss disability had grown worse day-to-day. VA's General Counsel has interpreted that, when a veteran asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. See VAOPGCPREC 11-95; see also, e.g., Caffrey v. Brown, 6 Vet. App. 377, 381 (1995); Green v. Derwinski, 1 Vet. App. 121, 124 (1991); 38 C.F.R. § 3.327 (2013). Accordingly, the Veteran was afforded another VA examination in January 2013 and there is no indication of a worsening since. The Board finds the VA examinations were thorough and adequate and provide a sound basis upon which to base a decision with regard to the Veteran's claims. The VA examiners personally interviewed and examined the Veteran, fully reviewed all medical evidence of record, and specifically addressed the symptoms listed in the relevant criteria in the potentially applicable diagnostic codes. Moreover, neither the Veteran nor his representative has challenged the adequacy of the examinations. In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the United States Court of Appeals for Veterans Claims (Court) held that, relevant to VA audiological examinations, 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. At both the February 2010 and January 2013 audiological examination the Veteran was asked how his bilateral hearing loss impacted his daily life including his ability to work. The February 2010 examination report reflects that the Veteran did not report any functional impairment caused by his hearing loss. The January 2013 examination report reflects that the Veteran reported difficulty understanding speech in all situations without his hearing aids and that it did not impact his ability to work. As such, the Board finds that the examiners have fully described the functional effect of the Veteran's bilateral hearing loss. The Veteran was also scheduled to testify at a hearing before the Board but did not appear. The Veteran submitted a letter on November 6, 2013, prior to the date of the hearing. In the letter the Veteran asserted that he could not commit to any date for a hearing due to his Parkinson's disease which made it difficult for him to travel. However, the Veteran did not request that another hearing be scheduled. As such, while the Veteran provided good cause for his absence, his request for a hearing is considered withdrawn as he has not requested another hearing and has indicated that a hearing in the future may not be possible. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. II. Analysis Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R., Part 4 (2013). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1 (2013). Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2 (2013). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where, as here, entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern, including the appropriateness of staged ratings whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. Evaluations of bilateral 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 level as measured by puretone audiometric tests at the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from bilateral defective hearing, 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). 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) (2013). Similarly, if the puretone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz, 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, and that numeral will be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86(b). Table VIA, "Numeric Designation of Hearing Impairment Based Only on Pure Tone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average. Table VIA will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of Section 4.86, described in the preceding paragraph. 38 C.F.R. § 4.85(c). A. Rating Prior to January 30, 2013 The evidence during the applicable period consists of the February 2010 VA examination where the Veteran was seen by a VA audiologist and evaluated for hearing loss. Audiological results for puretone thresholds and Maryland CNC scores were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 40 45 55 75 LEFT 90 85 75 95 105 Pure tone averages: Right - 53.75; Left - 90 Maryland CNC Scores: Right - 88 percent; Left - 80 percent Based on these results, and applying Table VI, the Veteran is shown to have level II hearing impairment in the right ear and level V hearing impairment in the left ear. Because the puretone thresholds are all 55 or greater for the left ear, 38 C.F.R. § 4.86(a) applies. Under these circumstances, Table VIA can be applied, which shows level VIII hearing impairment for the left ear. Combining these designations under Table VII results in a 10 percent disability rating. 38 C.F.R. § 4.85, Diagnostic Code 6100. As described, the February 2010 audiological results do not show that a schedular rating in excess of 30 percent is warranted for the Veteran's bilateral hearing loss prior to January 30, 2013, as not even more than a 10 percent rating was evident. The February 2010 VA examination report represents the best evidence for deciding the claim for this rating period as it is the piece of evidence that contains comprehensive audiometric testing sufficient for rating the disability. B. Rating From January 30, 2013 The evidence most probative to the rating period from January 30, 2013, consists of the January 2013 VA examination report. The Veteran was seen by a VA audiologist in January 2013 where he was evaluated for hearing loss. Audiological results for puretone thresholds and Maryland CNC scores were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 60 45 45 80 75 LEFT 85 80 75 85 105 Pure tone averages: Right - 61.25; Left - 86.25 Maryland CNC Scores: Right - 92 percent; Left - 88 percent Applying Table VI to the Veteran's right ear hearing loss as shown at his examination in January 2013 results in a numeric designation of level II hearing impairment. The Board again notes that, for the Veteran's left ear, Table VIA provides for a higher level of level of impairment because the puretone thresholds were at least 55 decibels at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) for the Veteran's left ear. 38 C.F.R. § 4.86(a). Applying Table VIA to the Veteran's left ear hearing loss as shown at that time results in a numeric designation of level VIII hearing impairment. Combining these designations utilizing Table VII results in a 10 percent disability rating. 38 C.F.R. § 4.85, Diagnostic Code 6100. As described, the January 2013 audiological results do not show that a schedular rating in excess of 10 percent is warranted for the Veteran's bilateral hearing loss from January 30, 2013, as a 10 percent rating is evident from the audiometric testing. C. Conclusion and Other Considerations The Board has reviewed the multiple statements from the Veteran and, while they do paint a picture of the level of his hearing impairment, these statements do not establish that an increased schedular rating is warranted, since such a rating is determined from the application of mechanical audiometric testing and speech recognition scores. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Specifically, the Veteran has submitted research evidence concerning cochlear dead zones and has asserted that he was informed he had cochlear dead zones. However, as described, rating determinations for hearing loss are made based solely on the application of mechanical audiometric testing and speech recognition scores which reflect the extent of the hearing loss and not the cause of the hearing loss. The multiple hearing tests conducted in this case do not demonstrate that an increased schedular rating is warranted for the Veteran's bilateral hearing loss to exceed 30 percent prior to January 30, 2013, or to exceed 10 percent thereafter. The Board notes that the Veteran's rating is lower for the second rating period compared to the first rating period. Although this is a reduction in the rating for bilateral hearing loss, the reduction does not result in a reduction or discontinuance of compensation payments currently being made. He is receiving a total disability rating for Parkinson's disease and its associated effects. Because there is no reduction in compensation payments, the special provisions pertaining to reductions are not applicable. See 38 C.F.R. § 3.105(e) (2013). Additionally, the examinations showing a 10 percent level of impairment were full and complete and the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. The Board has also considered whether an extraschedular rating is warranted, noting that if an exceptional case arises where the rating schedule is found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1) (2013). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). 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. This means that 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. 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. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made 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"). See id. 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 evaluations for the service-connected disability are inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Decreased hearing and being unable to hear some distinguishable words are symptoms contemplated by the hearing impairment levels. As the first prong of Thun is not satisfied, the Board finds that the evidence does not demonstrate an exceptional or unusual clinical picture beyond that contemplated by the rating criteria and no further analysis is required. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. Here, there is no evidence that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected bilateral hearing loss. He has not alleged that he is unemployable on account of his hearing loss disability. During a VA examination for his service -connected hearing loss disability the Veteran stated that his hearing loss did not impact his ability to work. Thus, a TDIU is not reasonably raised by the record for this disability. In sum, the evidence demonstrates that, for the entire period on appeal, the Veteran's hearing loss symptoms resulted in at most a 10 percent disability rating. Therefore, the Veteran's claim for an increased rating in excess of 30 percent prior to January 30, 2013, and in excess of 10 percent thereafter, is 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 Veteran's claim for an increase, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to an increased disability rating for bilateral hearing loss to exceed 30 percent prior to January 30, 2013, is denied. Entitlement to an increased disability rating for bilateral hearing loss to exceed 10 percent from January 30, 2013, is denied. ____________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs