Citation Nr: 1340919 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 07-29 805 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a compensable evaluation for bilateral defective hearing. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran and son ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran had active military service from June 1971 to June 1975. This matter initially come before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Houston, Texas, Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's claim for a higher (compensable) rating for service-connected bilateral hearing loss. The Veteran testified before the undersigned at an August 2011 Travel Board hearing; the Veteran also provided testimony before a Decision Review Officer (DRO) at the RO in October 2010. Transcripts of those proceedings have been associated with the claims file. This matter was previously before the Board in January 2012, January 2013, and July 2013, at which time it was remanded for further development. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDING OF FACT For the entire appeal period, the Veteran's bilateral hearing loss has been productive of no more than Level III hearing acuity in the right ear and Level III hearing acuity in the left ear. CONCLUSION OF LAW The criteria for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In a claim for increase, the VCAA requires notice of 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. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced diagnostic code under which the disability is rated). Here, the Veteran received content complying VCAA notice prior to the initial unfavorable agency decision through a January 2010 notice letter. Thus, the duty to notify the Veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Service treatment records are associated with claims file. All post-service treatment records and reports identified by the Veteran have also been obtained. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran was provided VA examinations in February 2010, February 2012, and September 2013. The examinations are adequate for rating purpose; they include a review of the Veteran's pertinent medical history, an audiological examination of the Veteran, and discuss the hearing loss impact on his occupational functioning and activities of daily living. See generally Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Board finds no credible lay or medical evidence demonstrating or alleging a decrease in the Veteran's hearing acuity since the September 2013 VA examination. Thus, there is no duty to provide further medical examination on the bilateral hearing loss claim. See VAOPGCPREC 11-95 (Apr. 7, 1995). Additionally, in August 2011, the Veteran and his son were provided an opportunity to set forth contentions during a hearing before the undersigned Acting Veterans Law Judge (AVLJ). The provisions of 38 C.F.R. § 3.103(c)(2) require that the RO Decision Review Officer or VLJ who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the August 2011 hearing, the undersigned noted the issue on appeal. The testimony included discussion by the Veteran and his son that VA's rating criteria did not adequately address the Veteran's functional limitations due to hearing loss, and that testing results seemed to be unreliable. The undersigned explained that the rating was based upon a mechanical application of numeric measurements of hearing loss, and that a review would be conducted for extraschedular entitlement. The hearing also discussed all available information which may be capable of substantiating the claim. As such, the Board finds that, consistent with Bryant, the undersigned has complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. To the extent any deficiencies existed, they were cured with further Board development of the claim. Finally, the Board finds that the RO has complied with the Board's prior remand directives by obtaining VA clinic records, associating records from the Social Security Administration with the claims folder, clarified the type of word list used by a private examiner, provided the Veteran adequate VA examination and readjudicated the claim. Thus, the Board finds substantial compliance with its prior remand directives. In sum, all relevant facts have been adequately developed to the extent possible and 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. Analysis Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board must evaluate the medical evidence of record since the filing of the claim for an increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007). By way of procedural history, service connection for bilateral hearing loss was granted in an August 2006 rating decision; a 0 percent (noncompensable) evaluation was assigned, effective October 19, 2005. In October 2009, the Veteran submitted a claim for an increased rating for service-connected bilateral hearing loss. That claim was denied in a March 2010 rating decision. In April 2010, the Veteran submitted a Notice of Disagreement as to that determination, which was followed by the issuance of a statement of the case (SOC) in May 2010 and submission of a VA Form 9 in June 2010. The Veteran's service-connected bilateral hearing loss has been evaluated as noncompensable throughout the appeal period under the provisions of Diagnostic Code 6100. See 38 C.F.R. § 4.85. In evaluating hearing loss, disability ratings on a schedular basis are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmen v. Principi, 3 Vet. App. 345, 349 (1992). The ratings schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in both ears. See 38 C.F.R. § 4.85. A February 17, 2010 VA (QTC) audiological examination recorded pure tone thresholds in the right ear as follows: 25, 20, 25, and 35 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. Pure tone thresholds in the left ear were as follows: 45, 40, 60, and 55 decibels, at 1000, 2000, 3000, and 4000 Hertz, respectively. Speech recognition was 96 percent in the right ear and 96 percent in the left. Entering the average pure tone thresholds (i.e., 26 decibels for the right ear and 50 decibels for the left ear) and speech recognition scores into Table VI reveals the numeric designation of hearing impairment is I for the right ear and I for the left ear. See 38 C.F.R. § 4.85. Entering the category designations for each ear into Table VII results in a noncompensable evaluation under Diagnostic Code 6100. Id. The Board notes that the Veteran also underwent a VA audiological examination on February 18, 2010 in the VA clinic setting. See Houston VA Medical Center Audiology Report, February 18, 2010. The VA audio assessment report indicates that the NU-6, and not the Maryland CNC, speech audiometry test was utilized. This test may not be used in determining the Veteran's disability evaluation. See 38 C.F.R. § 4.85(a)(requiring the use of the Maryland CNC speech audiometry test). The Veteran also underwent a private audiological examination in February 2012; a subsequent clarification letter from the audiologist who performed the February 2012 examination confirmed that the W-22, and not the Maryland CNC, speech audiometry test was utilized. See Today's Hearing Audiological Report, Mary Sue Harrison Au.D., February 2012. Again, this test may not be used in determining the Veteran's disability evaluation. 38 C.F.R. § 4.85(a). A February 2012 VA audiological examination (and March 2012 addendum report after a review of the claims file) recorded pure tone thresholds in the right ear as follows: 25, 30, 35, and 50 decibels at 1000, 2000, 3000, and 4000 Hertz , respectively. Pure tone thresholds in the left ear were as follows: 30, 35, 60, and 55 decibels, at 1000, 2000, 3000, and 4000 Hertz, respectively. Speech recognition was 98 percent in the right ear and 94 percent in the left. Entering the average pure tone thresholds (i.e., 35 decibels for the right ear and 45 decibels for the left ear) and speech recognition scores into Table VI reveals the numeric designation of hearing impairment is I for the right ear and I for the left ear. See 38 C.F.R. § 4.85. Entering the category designations for each ear into Table VII results in a noncompensable evaluation under Diagnostic Code 6100. Id. Finally, a September 2013 VA audiological examination recorded pure tone thresholds in the right ear as follows: 25, 25, 30, and 40 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. Pure tone thresholds in the left ear were as follows: 25, 30, 40, and 50 decibels, at 1000, 2000, 3000, and 4000 Hertz, respectively. Speech recognition was 80 percent in the right ear and 80 percent in the left. Entering the average pure tone thresholds (i.e., 30 decibels for the right ear and 36 decibels for the left ear) and speech recognition scores into Table VI reveals the numeric designation of hearing impairment is III for the right ear and III for the left ear. See 38 C.F.R. § 4.85. Entering the category designations for each ear into Table VII results in a noncompensable evaluation under Diagnostic Code 6100. Id. In sum, based on the February 2010, February 2012, and September 2013 objective audiological findings outlined above, the Veteran's hearing bilateral impairment does not meet the criteria for the next-higher (compensable) rating. See 38 C.F.R. § 4.85, Table VII. Moreover, there has been no demonstration of an exceptional pattern of hearing impairment so as to warrant application of the provisions of 38 C.F.R. § 4.86(a) or (b). The Board acknowledges the Veteran's assertion that his bilateral hearing loss is worse than a noncompensable evaluation and that he is entitled to a higher evaluation for such hearing loss throughout the appeal period. The Veteran and his son describe the Veteran's difficulties with communicating with other people which are exacerbated when not involving face to face conversations or in the presence of background noise. It is asserted that the need to wear a hearing aid, in and of itself, should warrant a compensable rating. It is also asserted that the audiology results have been very inconsistent. The Board observes that the Veteran and his son are clearly competent to describe his hearing difficulties, which are credible and consistent with the evidentiary record. However, with regard to the overall severity of his hearing loss, the Board places greater probative weight to the measurement of hearing impairment by audiometric and speech recognition testing by VA which provides more consistent and objective measurements of hearing impairment using the same standardized testing results. These audiometric and speech recognition test findings overwhelming establish that the criteria for a compensable rating under VA's Schedule of Ratings have not been met for any time during the appeal. The private and VA clinic results cannot be reliably used as they measure hearing loss under a different standard contemplated by VA's Schedule of Ratings. Therefore, the claim must be denied. The Board acknowledges that the Veteran has provided concrete examples of functional impairments which are not directly stated in the rating schedule. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The provisions of 38 C.F.R. § 3.321(b) state as follows: Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities. The governing norm in these exceptional cases is: 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 as to render impractical the application of the regular schedular standards. In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. VA's General Counsel has stated that consideration of an extra-schedular rating under 3.321(b)(1) is only warranted where there is evidence that the disability picture presented by the Veteran would, in that average case, produce impairment of earning capacity beyond that reflected in the rating schedule or where evidence shows that the Veteran's service-connected disability affects employability in ways not contemplated by the rating schedule. See VAOPGCPREC 6-96 (Aug. 16, 1996). In Thun, the Court further explained that the actual wages earned by a particular Veteran are not considered relevant in the calculation of the average impairment of earning capacity for a disability, and contemplate that Veterans receiving benefits may experience a greater or lesser impairment of earning capacity than average for their disability. The Thun Court indicated that extraschedular consideration cannot be used to undo the approximate nature of the rating system created by Congress. The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. However, the Board is not precluded from raising this question, see Floyd v. Brown, 9 Vet. App. 88 (1996), and addressing referral where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Here, the rating criteria reasonably describe the Veteran's functional impairments and symptomatology pertaining to his service-connected bilateral hearing loss. As indicated above, the Veteran reports the inability to understand noise and speech in crowded environments or without face-to-face communications. The Board finds that the Rating Schedule measures and contemplates these aspects of the Veteran's hearing loss disability. As explained in the proposed rule for the current version of DC 6100, the criteria of DC 6100 were revised in 1987 with the goal of recognizing the impact of hearing loss in higher frequencies, and to provide a more accurate picture of true hearing impairment. See 52 Fed. Reg. 17607 (May 11, 1987). As a result, VA changed its testing methods and, in conjunction with the Department of Medicine and Surgery, developed amendments to 38 C.F.R. § 4.85, 4.86a, 4.87a and Tables VI and VII. In particular, puretone averaging was to be accomplished using tone bursts at 1000, 2000, 3000 and 4000 Hertz, and speech recognition was to be measured using the Maryland CNC word lists which contained words with sounds in the 3000 and 4000 Hertz range. Overall, the new schedule was intended to evaluate hearing loss based on a combination of puretone averages and speech discrimination, which was thought to provide for a more accurate representation of actual hearing impairment by recognizing that individuals with slight to moderate decibel loss as determined by puretone averaging may have significant impairment of speech and vice versa. Additionally, the rating schedule was revised to accommodate language difficulties and other factors which produced inconsistent speech audiometry scores, and to recognize exceptional patterns of hearing impairment. Notably, VA determined that "Table VII was developed during months of consultations with our Department of Medicine and represents the best judgment of experts in this field." Based upon the stated factors and considerations undertaken by VA and medical experts in developing the current criteria of DC 6100, the Board finds that the schedular rating currently assigned reasonably describes the Veteran's disability level and symptomatology. The Veteran's description of an inability to hear and discriminate speech has been measured according to puretone averages and speech discrimination. The Board further observes that VA examinations are conducted without use of hearing aids, see 38 C.F.R. § 4.85, and that the use of hearing aids would, if anything, provide better hearing than demonstrated on audiometric examination. See 52 Fed. Reg. 44117 (Nov. 18, 1987). As such, extraschedular consideration is not warranted. Finally, there is no evidence of record that the Veteran's hearing loss disability has markedly interfered with employment and remand or referral of a claim for TDIU is not appropriate. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Specifically, the record does not establish, and the Veteran does not otherwise contend, that his service-connected hearing loss prevents him from being employed. The Veteran's SSA records establish that he is currently unable to work due to heart and psychiatric disorders, and not his hearing loss. Therefore, the issue of entitlement to TDIU has not been reasonably raised. See Roberson v. Principi, 251 F.3d 1378, 1384 (2001). The preponderance of the evidence is against a compensable evaluation for bilateral hearing loss. There is no doubt to be resolved, and a compensable evaluation for bilateral hearing loss is not warranted. See 38 U.S.C.A. § 5107(b). ORDER A compensable evaluation for bilateral hearing loss is denied. ____________________________________________ T. MAINELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs