Citation Nr: 1341308 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 11-07 912 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss. REPRESENTATION Appellant represented by: Mary M. Long, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Sonia, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1956 to November 1959. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In July 2012, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. Prior to March 31, 2010, the Veteran's service-connected bilateral hearing loss was manifested, at most, by an average pure tone threshold of 57.5 decibels with speech discrimination of 64 percent in the right ear and by an average pure tone threshold of 56.25 decibels with speech discrimination of 62 percent in the left ear. 2. After March 31, 2010, the Veteran's service-connected bilateral hearing loss was manifested, at most, by an average pure tone threshold of 59 decibels with speech discrimination of 68 percent in the right ear and by an average pure tone threshold of 63 decibels with speech discrimination of 76 percent in the left ear. CONCLUSIONS OF LAW 1. Prior to March 31, 2010, the criteria for entitlement to an initial disability rating of 30 percent, but no higher, for service-connected bilateral hearing loss have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7816 (2013). 2. After March 31, 2010, an initial disability rating in excess of 10 percent for service-connected bilateral hearing loss has not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7816 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which 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. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). When entitlement to compensation has been established and a higher initial evaluation is at issue, the level of disability at the time entitlement arose is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consideration must also be given to a longitudinal picture of the Veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluations for bilateral hearing loss 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 levels as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per second. To evaluate the degree of disability from the Veteran's hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from level I for slightly impaired hearing acuity through level XI for profound deafness. The results of such testing are charted on Table VI and VII. See 38 C.F.R. § 4.85. Exceptional patterns of hearing impairment are addressed in 38 C.F.R. § 4.86. In the present appeal, the Veteran seeks an increased rating for bilateral hearing loss, which is currently evaluated as 10 percent disabling pursuant to 38 C.F.R. § 4.85. In a December 2009 statement, the Veteran indicated that his bilateral hearing loss has gotten worse over the years, specifically since 1956. The Veteran also reported difficulty hearing female voices on the telephone as well as conversational speech, especially when there is background noise. As will be discussed below, while the Veteran may feel that his bilateral hearing loss warrants a higher rating, a mechanical application of the rating schedule results in a 30 percent rating, and no higher, prior to March 31, 2010. After March 31, 2010, a 10 percent rating, and no higher, is warranted. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Turning to the evidentiary record, the Veteran submitted a December 2009 audiogram, which was completed by "Dr. B.W." The Veteran's puretone threshold averages were 57.5 decibels in his right ear and 56.25 in his left ear. The speech discrimination scores were 64 and 62 percent in the right and left ears, respectively. At that time, the Veteran again reported difficulty hearing normal conversational speech, especially when background noise was present. Thus, this examination report yielded a numerical designation of VI in the right ear (58 to 65 puretone threshold average, with between 60 and 66 percent speech discrimination) and VI in the left ear (50 to 57 puretone threshold average, with between 60 and 66 percent speech discrimination). Entering the category designations into Table VII, a 30 percent evaluation is for assignment under Diagnostic Code 6100. These audiogram results were provided in graph form, and the Board has depicted the numerical results from the graph. See Kelly v. Brown, 7 Vet. App. 471, 474 (1995) (noting that, because interpreting results from an audiometric graph involves fact finding, the Court is precluded from engaging in such fact finding in the first instance, and remanding in part because the Board did not discuss the results of the private audiometric testing); see also Savage v. Shinseki, 24 Vet. App. 249 (2011) (noting the Board may interpret results from a private audiometric graph, if it felt it had the expertise, and holding that the Board may not ignore such private audiometric test results that are of record). Moreover, Dr. B.A. submitted an affidavit stating that during the time frame in which she performed the Veteran's examination, she was serving as a contractor performing audiologic evaluations on other patients for VA and that she was familiar with VA examination requirements. Next, the Veteran underwent a VA hearing loss examination in March 2010. The Veteran's puretone threshold averages were 54 decibels in his right ear and 58 in his left ear. The speech discrimination scores were 88 and 92 percent in the right and left ears, respectively. The Veteran reported difficulty hearing and understanding speech. Thus, this examination report yielded a numerical designation of II in the right ear (50 to 57 puretone threshold average, with between 84 and 90 percent speech discrimination) and II in the left ear (58 to 65 puretone threshold average, with between 92 and 100 percent speech discrimination). Entering the category designations into Table VII, a noncompensable evaluation is for assignment under Diagnostic Code 6100, providing evidence against this claim. Due to the differing results between the December 2009 and March 2010 audiograms, the Veteran was afforded another VA hearing loss examination in July 2010. The Veteran's puretone threshold averages were 59 decibels in his right ear and 63 in his left ear. The speech discrimination scores were 68 and 76 percent in the right and left ears, respectively. The Veteran continued to report difficulty hearing and understanding speech. Thus, this examination report yielded a numerical designation of V in the right ear (58 to 65 puretone threshold average, with between 68 and 74 percent speech discrimination) and IV in the left ear (58 to 65 puretone threshold average, with between 76 and 82 percent speech discrimination). Entering the category designations into Table VII, a 10 percent evaluation is for assignment under Diagnostic Code 6100. The July 2010 examiner also opined as to which of the evaluations was the most accurate depiction of the Veteran's hearing loss disability. The examiner compared the differences in puretone thresholds as well as speech recognition scores to conclude that "if judgment is based on word recognition scores, two of the three last audiological evaluations agree more with today's evaluation results as well as those dated 12/28/2009." However, medical evidence that is speculative, general, or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Here, the examiner's opinion was predicated by the word "if," and, even though Table VII clearly requires both an average puretone threshold and word recognition scores, the examiner appears to form a conclusion by relying on speech recognition scores alone. Therefore, the July 2010 opinion has low probative value with regard to the opinion rendered; however, the objective evidence, which reflects a 10 percent rating for the Veteran's bilateral hearing loss, remains highly probative, as there is no indication that the audiogram results themselves were inaccurate. Subsequently, in January 2012, another VA hearing loss examination was performed in order to provide current levels of hearing loss. The Veteran's puretone threshold averages were 58 decibels in his right ear and 54 in his left ear. The speech discrimination scores were 84 and 76 percent in the right and left ears, respectively. At that time, the Veteran reported listening to the television at an increased volume and having difficulty understanding conversations when eating at restaurants. Thus, this examination report yielded a numerical designation of III in the right ear (58 to 65 puretone threshold average, with between 84 and 90 percent speech discrimination) and IV in the left ear (50 to 57 puretone threshold average, with between 76 and 82 percent speech discrimination). Entering the category designations into Table VII, a 10 percent evaluation is for assignment under Diagnostic Code 6100. During the July 2012 hearing, the Veteran testified that he needs to increase the volume on his television, especially when background music is playing, in order to watch a program. He also reported difficulty holding conversations with his grandchildren and that he has difficulty hearing when people are facing away from him. In addition, the Veteran stated he relies on visual aids, such as mirrors, while driving due to his hearing loss. In particular, the Veteran testified he almost hit an ambulance, even though it had sirens on, because he could not hear the sirens. When asked about the different hearing evaluations he completed, the Veteran indicated that the evaluations appeared to be the same, but he also stated that the ringing in his ears varies with some days being "louder" than others. Therefore, a review of the evidence shows that throughout the appeal period, the Veteran's bilateral hearing loss has not demonstrated exceptional patterns of hearing impairment as outlined in 38 C.F.R. § 4.86. Instead, application of Table VI under 38 C.F.R. § 4.85 results in a 30 percent rating for the Veteran's bilateral hearing loss prior to March 31, 2010. After March 31, 2010, a 10 percent rating, and no higher, is warranted. In sum, since March 31, 2010, the Veteran's hearing loss has been either at a noncompensable level or demonstrative of a 10 percent rating based on the application of 38 C.F.R. § 4.85. Indeed, three VA examinations, including the March 31, 2010 examination, do not result in puretone threshold averages and speech discrimination scores that yield a rating in excess of 10 percent under the mechanical application of 38 C.F.R. § 4.85. The Board acknowledges the representative's argument, as well as the Veteran's contention in his August 2010 Notice of Disagreement, that the Veteran should be afforded the benefit of the doubt and a 30 percent rating should be granted based on the findings of the December 2009 audiogram, which he is in this regard for a limited period cited above. However, the preponderance of the evidence is against such a finding. Not only did the Veteran's objective test results in January 2012 once again affirm a 10 percent rating, the Veteran himself testified that some days are worse than others in terms of his hearing acuity. Moreover, the December 2009 audiogram has indeed been given probative value as it has provided a basis for a staged rating of 30 percent prior to March 31, 2010 for the Veteran's service-connected bilateral hearing loss. Moreover, the Board acknowledges the RO's consideration of the Veterans Benefit Administration (VBA) Fast Letter 10-06, which indicates that when speech recognition is 92 percent or less, a performance intensity function must be obtained. Such a test was not obtained by Dr. B.A. in December 2009. However, the Board is not bound by Department manuals, circulars, or similar administrative issues. Moreover, there is no indication that the January 2012 VA examiner performed such a test, and the March 2010 examiner indicated that such a test was not possible. Therefore, the Board will consider each of the audiograms as having probative value in the present appeal. Consequently, a rating of 30 percent, but no higher, is warranted for the Veteran's service-connected bilateral hearing loss prior to March 31, 2010. After March 31, 2010, a rating in excess of 10 percent is not warranted. There is no basis for further staged rating of the Veteran's disability, and the preponderance of the evidence is against assignment of any higher rating than that already assigned. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert, 1 Vet. App. at 49. Moreover, the Board finds no other diagnostic codes would be appropriate to evaluate the Veteran's bilateral hearing loss. See Schafrath, 1 Vet. App. at 595. The Board also finds that an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has not been raised in this case. The Veteran stated he is retired and has made no assertion that his bilateral hearing loss caused him to be unemployable. Finally, the Board finds that an extraschedular evaluation is not warranted in this case because the rating criteria reasonably describes the Veteran's disability level and symptomatology; the assigned schedular evaluation is therefore adequate, and no referral is required. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111, 115 (2008). Specifically, the Veteran's bilateral hearing loss has been measured by four different audiograms and his statements describing increased difficulty hearing the television, understanding conversational speech, and difficulty handling background noise have been taken into consideration when applying the rating criteria. Moreover, the record does not reflect that the Veteran's bilateral hearing loss has been productive of marked interference or frequent hospitalizations related to such a disability. In sum, the Board has determined that there are no unusual or exceptional factors in this case warranting the referral of the claim for extraschedular consideration. Duty 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Where, as here, service connection has been granted and the initial rating has been assigned, the claim of entitlement to service connection has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required, since the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). Regarding the duty to assist, the Board is satisfied VA has made reasonable efforts to obtain relevant records and evidence. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Moreover, 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). However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate, and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-91 (Fed. Cir. 2009). Here, three VA examinations were performed to evaluate the Veteran's bilateral hearing loss. Although the Veteran and his representative have questioned the need for the VA examinations, neither party has challenged their adequacy or thoroughness, or the competency of the examiners. Furthermore, the RO indicated that VA regulations required the conduction of a modified function test when a veteran's speech recognition was 92 percent or less; as such a test was not performed by Dr. B.A. in December 2009, it is reasonable that the Veteran was sent for another examination in order to comply with VA directives. Accordingly, VA's duty to provide a VA examination is satisfied. Additionally, the Veteran testified at a hearing before the Board in July 2012. A VLJ who conducts a hearing must fully explain the issues and suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the hearing, the Veteran was assisted by a representative, and both the representative and the VLJ asked relevant questions concerning the Veteran's symptoms and the resulting impairment, as well as the effect of his disability on his daily life and his occupation. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2). Based on the foregoing, no further notice or assistance to the Veteran is required for fair adjudication of the Veteran's claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER A 30 percent rating for service-connected bilateral hearing loss for the period prior to March 31, 2010 is granted, subject to the regulations governing the award of monetary benefits. A rating higher than 10 percent service-connected bilateral hearing loss for the period from March 31, 2010, forward, is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs