Citation Nr: 1341430 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 12-11 062 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran had active duty service from May 1960 to February 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2012, the Veteran testified before the undersigned Veterans Law Judge sitting at the RO. A copy of the hearing transcript is associated with the claims file and has been reviewed. Also in July 2012 additional evidence was received with a written waiver of preliminary RO review. In September 2012 the Board remanded the matter for additional development. 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. Prior to February 26, 2013, the Veteran's service-connected bilateral hearing loss disability was productive of no higher than Level II hearing acuity in the right ear and no higher than Level IV hearing acuity in the left ear. 2. From February 26, 2013, the Veteran's service-connected bilateral hearing loss disability was productive of no higher than Level V hearing acuity in the right ear and no higher than Level VI hearing acuity in the left ear. CONCLUSIONS OF LAW 1. Prior to February 26, 2013, the criteria for the assignment of a compensable rating for bilateral hearing loss disability were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.85, Diagnostic Code 6100 (2013). 2. From February 26, 2013, the criteria for the assignment of a 20 percent rating (but no higher) for bilateral hearing loss disability were met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.85, Diagnostic Code 6100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Duty to Notify The record shows that in a July 2010 VCAA letter, the appellant was informed of the information and evidence necessary to warrant entitlement to the benefit sought on appeal. The appellant was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims' (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. In this case, the RO provided VCAA notice to the Veteran prior to the September 2010 rating decision. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. Further, the notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate the claim for service connection. Further, the July 2010 letter also gave notice of the types of evidence necessary to establish a disability rating and effective date for the disability on appeal. However, since the issue in this case (entitlement to assignment of a higher initial rating) is a downstream issue from that of service connection (for which a VCAA letter was duly sent in July 2010), another VCAA notice is not required. VAOPGCPREC 8-2003 (Dec. 22, 2003). It appears that the Court has also determined that the statutory scheme does not require another VCAA notice letter in a case such as this where the Veteran was furnished proper VCAA notice with regard to the claim of service connection itself. See Dingess, 19 Vet. App. 473. In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment and private medical records. The Veteran was afforded a VA examination in September 2010. Lay statements from the Veteran's employer, sister and a friend have been associated with the claims file. No additional pertinent evidence has been identified by the claimant as relevant to this appeal. Under these circumstances, no further action is necessary to assist the claimant with this appeal. Legal Criteria, Factual Background and Analysis The present appeal involves the Veteran's claim that the severity of his service-connected hearing loss warrants a compensable disability rating. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as 'staged' ratings. Id. at 126. In evaluating service-connected hearing loss, disability ratings are derived from mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). VA regulations require that an examination 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. Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test (Maryland CNC) and the average hearing threshold, as measured by puretone audiometric tests at the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz. The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through level XI for profound deafness. An examination 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. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination) is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone average intersect. 38 C.F.R. § 4.85(b). The puretone threshold average is the sum of the puretone thresholds at 1,000, 2,000, 3,000 and 4,000 Hertz, divided by 4. This average is used in all cases to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.85(d). Table VII, (Percentage Evaluations for Hearing Impairment) is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is located at the point where the rows and column intersect. 38 C.F.R. § 4.85(e). Table VI Numeric designation of hearing impairment based on puretone threshold average and speech discrimination. % of discrim- ination Puretone Threshold Average 0-41 42-49 50-57 58-65 66-73 74-81 82-89 90-97 98+ 92-100 I I I II II II III III IV 84-90 II II II III III III IV IV IV 76-82 III III IV IV IV V V V V 68-74 IV IV V V VI VI VII VII VII 60-66 V V VI VI VII VII VIII VIII VIII 52-58 VI VI VII VII VIII VIII VIII VIII IX 44-50 VII VII VIII VIII VIII IX IX IX X 36-42 VIII VIII VIII IX IX IX X X X 0-34 IX X XI XI XI XI XI XI XI Table VIA* Numeric designation of hearing impairment based only on puretone threshold average Puretone Threshold Average 0-41 42-48 49-55 56-62 63-69 70-76 77-83 84-90 91-97 98-104 105+ I II III IV V VI VII VIII IX X XI Table VII Percentage evaluation for hearing impairment (Diagnostic Code 6100) Poorer Ear XI 100* X 90 80 IX 80 70 60 VIII 70 60 50 50 VII 60 60 50 40 40 VI 50 50 40 40 30 30 V 40 40 40 30 30 20 20 IV 30 30 30 20 20 20 10 10 III 20 20 20 20 20 10 10 10 0 II 10 10 10 10 10 10 10 0 0 0 I 10 10 0 0 0 0 0 0 0 0 0 XI X IX VIII VII VI V IV III II I VA regulations also provide that in cases of exceptional hearing loss, when the puretone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 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). The provisions of 38 C.F.R. § 4.86(b) further provide that, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. Audiological evaluation at separation from service in January 1963 revealed the Veteran had whisper voice of 15/15 in both ears. His pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 5 X 45 LEFT 0 5 0 X 25 On VA audiological examination in September 2010, puretone thresholds in decibels were: HERTZ 1000 2000 3000 4000 Average RIGHT 20 45 75 85 56 LEFT 25 50 95 105 69 Speech audiometry revealed speech recognition ability of 90 percent in the right ear and of 82 percent in the left ear. Looking to the rating criteria, the September 2010 results show Level II hearing acuity in the right ear, and Level IV hearing acuity in the left ear, which results in a noncompensable rating under Table VII. The special provisions of 38 C.F.R. § 4.86 are not applicable. The record also includes private audiological examination reports. A June 2010 report appears to show a threshold average of 55 in the right ear and 65 in the left ear with 80 percent speech discrimination in the right ear and 88 percent speech discrimination in the left ear. These findings (assuming the test was conducted to VA regulatory guidelines) would warrant a finding of Level IV hearing acuity in the right ear and Level III acuity in the left ear which would warrant a compensable rating under Table VII. The report does not show that the special provisions of 38 C.F.R. § 4.86 were met. An August 2011 report appears to show a threshold average of 60 in the right ear and 69 in the left ear with 72 percent speech discrimination in the right ear and 80 percent speech discrimination in the left ear. These findings (assuming the test was conducted to VA regulatory guidelines) would warrant a finding of Level VII hearing acuity in the right ear and Level VI acuity in the left ear which would warrant a compensable rating under Table VII. Again, the provisions of 38 C.F.R. § 4.86 were not met. A July 2012 report appears to show a threshold average of 61 in the right ear and 74 in the left ear. Speech discrimination percentages were not reported therefore such test results cannot be applied under VA regulatory guidelines. On remand in September 2012, the Board directed the RO to ascertain whether the June 2010, August 2011 and July 2012 private audiological examinations conformed to Maryland CNC standards. As noted, an examination 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. In a September 2012 letter, the RO asked the Veteran to provide the names, addresses, and approximate dates for the private providers who conducted the audiological test in June 2010, August 2011, and July 2012, as to whether the Maryland CNC test was conducted when he or she tested the Veteran's hearing. In a September 2012 Statement in Support of Claim the Veteran replied and noting that he spoke with the three providers that conducted said audiological tests and each stated that the Maryland CNC test was not conducted. Because the private providers did not use the Maryland CNC test, test results from the June 2010, August 2011, and July 2012 (noted above) cannot be applied under VA regulatory guidelines. Pursuant to the September 2012 Board remand, the Veteran underwent VA audiological examination on February 26, 2013; pure tone thresholds in decibels were: HERTZ 1000 2000 3000 4000 Avg. RIGHT 25 55 85 90 64 LEFT 25 55 95 105+ 70 Speech audiometry revealed speech recognition ability of 74 percent in the right ear and of 72 percent in the left ear. Looking to the rating criteria, the February 2013 results show Level V hearing acuity in the right ear, and Level VI hearing acuity in the left ear, which results in a 20 percent rating under Table VII. The special provisions of 38 C.F.R. § 4.86 are not applicable. A rating higher than 20 percent is not otherwise warranted under the scheduler rating criteria. Thus, the evidence supports a finding that a 20 percent rating (but no higher) is warranted from February 26, 2013. The Board also recognizes that the Veteran and the record refer to the impact of the service-connected disability on the Veteran's functioning, which may be understood to include work functioning. On February 2013 VA examination, it was noted that the Veteran's hearing loss impacted ordinary conditions of daily life, including his ability to work. He reported having difficulty hearing in background noise, with female voices and trouble hearing at a distance. In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the 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. The Board notes that the Court's rationale in requiring an examiner to consider the functional effects of a Veteran's hearing loss disability involves the potential application of 38 C.F.R. § 3.321(b) in considering whether referral for an extra-schedular rating is warranted. Specifically, the Court noted that, "unlike the rating schedule for hearing loss, § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extraschedular rating is warranted. The Secretary's policy [requiring VA audiologists to describe the effect of a hearing disability on a Veteran's occupational functioning and daily activities] facilitates such determinations by requiring VA audiologists to provide information in anticipation of its possible application." Id. The February 2013 VA audiological examination report discussed functional effects of hearing loss in accordance with Martinak. The Board has considered this information in making all the pertinent determinations in this case, and the information does not present any basis for finding that referral for extraschedular consideration is warranted. In this case, the record does not present such an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards. 38 C.F.R. § 3.321(b)(1). In this regard, the Board finds that there has been no showing by the Veteran that his service-connected hearing loss disability resulted in marked interference with employment or necessitated frequent periods of hospitalization so as to render impractical the application of the regular rating schedule standards. In the absence of such factors, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). 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. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe a Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe a Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate a Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether a 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. In this case, the symptoms described by the Veteran fit squarely within the criteria found in the relevant Diagnostic Code for the disability at issue. In short, the rating criteria contemplate not only his symptoms but the severity of his disability. For these reasons, referral for extraschedular consideration is not warranted. Additionally, the Court recently held that a request for a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate 'claim' for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue of whether a TDIU is warranted as a result of that disability. Id. The Board has considered whether the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due his hearing loss disability for which an increased rating is currently sought in this appeal. In the present case, the Board finds no such question is raised. The Veteran has not contended that he is unemployable due to the service-connected hearing loss on appeal. There has been no indication that he contends the hearing loss symptoms render him entirely incapable of gainful employment. The Board finds that neither the evidence nor the contentions of record otherwise raise the question of whether the Veteran is unemployable due to his bilateral hearing loss disability on appeal. Therefore, the Board finds that this appeal does not include an issue of entitlement to TDIU. ORDER Entitlement to a 20 percent rating (but no higher) for bilateral hearing loss from February 26, 2013, is warranted. To this extent the appeal is granted, subject to laws and regulations applicable to payment of VA monetary benefits. Entitlement to a compensable rating for bilateral hearing loss prior to February 26, 2013 is not warranted. To this extent, the appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs