Citation Nr: 1341489 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 06-02 484 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bordewyk, Alicia R. INTRODUCTION The Veteran served on active duty from August 1967 to October 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision which granted service connection for bilateral hearing loss, with a noncompensable rating assigned. The Veteran provided testimony before a Decision Review Officer (DRO) at the RO in April 2006. He provided testimony before the undersigned Acting Veterans Law Judge during a videoconference hearing in October 2009. Transcripts of both hearings are of record. A February 2011 Board decision on this and other issues was appealed. Subsequently, the United States Court of Appeals for Veterans Claims (Court) issued a September 2012 Order in which it vacated the February 2011 Board decision on the hearing loss issue and remanded the case to the Board for further development. The Court affirmed the Board's February 2011 decision concerning the other issues. In September 2013, the Board remanded the hearing loss issue for additional development. This appeal was processed using the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT The September 9, 2009, VA audiology examination demonstrated Level I hearing in both ears, consistent with the other credible audiology findings of record. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.85, Tables VI, VIA and VII, Diagnostic Code 6100; § 4.86 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION 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, 5126 (West 2002 & Supp. 2013) redefined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). This appeal arises from disagreement with the initial evaluation following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records from various federal agencies, and private medical records. Additionally, the Veteran was provided with multiple VA examinations to evaluate the current level of bilateral hearing loss, including the September 2009 VA examination. As noted in the February 2011 Board decision, in addition to dictating objective test results, the functional effects caused by a hearing disability have been fully described during VA examination. Martinak v Nicholson, 21 Vet App 447, 455 (2007). The Veteran has not reported, and there is no other evidence, that his hearing loss has worsened since the last VA examination. As such, additional examination is not required. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007) (mere passage of time not a basis for requiring of new examination). During the October 2009 Board hearing and prehearing conference, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the issues on appeal. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The issue on appeal was previously before the Board in September 2013, when it was remanded for additional development. In accordance with the remand instructions, the agency of original jurisdiction obtained and considered the September 2009 VA audiology examination and issued a supplemental statement of the case (SSOC) in October 2013. Since the record reflects compliance with the September 2013 remand instructions, the Board may proceed with adjudication of the claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Legal Criteria-Increased Rating, Hearing Loss Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2013). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. See 38 C.F.R. § 4.7 (2013). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2013). Evaluations of hearing loss range from noncompensable to 100 percent, based upon 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 audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. 38 C.F.R. § 4.85(a), (d) (2013). To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. When the pure tone thresholds at the four specified frequencies (1000, 2000, 3000, and 4000 hertz) are 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. 38 C.F.R. § 4.86 (a). When the pure tone thresholds are 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 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 highest Roman numeral. 38 C.F.R. § 4.86 (b) (2013). Evidence to be considered in the appeal of an initial disability rating is not limited to that reflecting the current severity of the disorder. In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the initial evaluation period. Fenderson v. West, 12 Vet. App. 119 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis As explained above, the Board denied entitlement to a compensable rating for bilateral hearing loss in February 2011. Several VA examinations were reviewed and the Board found that the reliable audiogram results demonstrated Level I hearing in each ear and that a noncompensable rating was warranted. The Veteran appealed the claim to the Court, and in September 2012, the Board's decision was vacated and remanded for consideration of a September 2009 VA audiology examination. The Board remanded the claim in September 2013 for consideration of the September 2009 VA examination in the first instance and, following issuance of the October 2013 SSOC, the claim was returned to the Board. Unfortunately, the September 2009 VA does not demonstrate that a compensable rating for bilateral hearing loss is warranted. The examination revealed that pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 25 25 50 30 LEFT 20 30 25 50 31 Speech audiometry revealed speech recognition ability of 98 percent in each ear. With respect to the right ear, the pure tone threshold average of 30, and the speech recognition score of 98 percent translates to level I hearing impairment under Table VI. With respect to the left ear, the pure tone average of 31 decibels and the speech recognition score of 98 percent translates to level I hearing impairment under Table VI. Level I hearing impairment in one ear and Level I hearing impairment in the other ear warrants a zero percent rating under the applicable criteria. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2013). Accordingly, an increased rating is not warranted based on the September 2009 VA examination. As explained in the February 2011 Board decision, the result of the Veteran's November 2004 private audiology examination, June 2005 VA audiology examination, and January 2009 VA audiology examination revealed Level I hearing in the right ear and Level I hearing in the left ear, also warranting a noncompensable rating 38 C F R § 4.85. The results of these examinations as well as the September 2009 VA examination do not meet the criteria for an exceptional pattern of hearing impairment and the provisions of 38 C F R. § 4.86 are inapplicable. The Board noted that the results of a March 2007 examination did not demonstrate that a compensable rating was warranted despite the audiogram results. The VA examiner determined that the obtained results were unreliable and noted that the Veteran appeared to be exaggerating his symptoms, particularly in light of the past audiological testing results. Although the Veteran has since denied exaggerating his hearing loss, the Board relies on the medical judgment of the examiner, who was present and observed the testing and is competent to interpret the results, and finds that the examination results are not reliable because they are drastically different from audiogram results obtained before and after the 2007 audiogram was performed. Therefore, the Board finds that there is no reliable or credible evidence that the hearing loss disability has met or approximated the criteria for a compensable rating at any time during the appellate period. 38 C.F.R. § 4.7, 4.21. Since the weight of evidence is against the claim, an increased schedular rating is denied. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1) (2013), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Therefore, 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. The Board finds that the rating criteria contemplate the Veteran's bilateral hearing loss disability. The disability is manifested by loss of hearing acuity, especially in the presence of other noise. The rating criteria are based specifically based upon on a loss of hearing acuity. 38 C.F.R. § 4.85. These manifestations are contemplated in the rating criteria. The rating criteria are, therefore, adequate to evaluate the Veteran's disabilities. Referral for consideration of extraschedular rating is, therefore, not warranted. ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. ____________________________________________ JOHN L. PRICHARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs