Citation Nr: 1342971	
Decision Date: 12/26/13    Archive Date: 01/07/14

DOCKET NO.  05-01 615	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an initial compensable disability rating for service-connected bilateral hearing loss.  


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Michael Wilson, Associate Counsel



INTRODUCTION

The Veteran had active service from March 1956 to March 1962.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO), in St. Petersburg, Florida, which, in relevant part, granted service connection for bilateral hearing loss, and assigned a noncompensable disability rating, effective November 17, 2003. 

This matter was previously before the Board in September 2007, April 2008, October 2008, and July 2009, wherein it was remanded for additional development. 

Following the July 2009 remand, the Board denied the Veteran's claim of entitlement to an initial compensable disability rating for bilateral hearing loss in an October 2010 decision.  The Veteran subsequently appealed the Board's October 2010 denial to the United States Court of Appeals for Veterans Claims (Court).  

In November 2011, the Court issued an Order vacating the October 2010 Board decision and remanded the issue for readjudication consistent with the terms found in a November 2011 Joint Motion to Vacate and Remand (Joint Motion).  

Following issuance of the Court's November 2011 Order, the Board again remanded the Veteran's claim for still additional development in March 2012, August 2012, March 2013, and, most recently, in July 2013.  

Pursuant to the Veteran's request for a Board hearing in his December 2004 Appeal To Board Of Veterans' Appeals (VA Form 9), the Veteran was, on two distinct occasions, scheduled to appear for a hearing before a Veterans Law Judge; once in April 2007 and then again in February 2008.  He did not, however, report to either of his scheduled hearings, and he did not provide good cause for his absence.  As such, his hearing request has been deemed withdrawn.  38 C.F.R. § 20.704(e) (2013).

This appeal was processed using the Veterans Benefits Management System (VBMS), a paperless claims processing system.  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.

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).


FINDING OF FACT

The Veteran has had no more than level I hearing impairment in both ears during the entire pendency of his appeal.  


CONCLUSION OF LAW

The criteria for a compensable disability rating for service-connected bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.85, 4.86 Diagnostic Code (DC) 6100 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION


Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim 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).

Courts have held that once service connection is granted, the claim is substantiated, 
additional notice is not required, and any defect in the notice is not prejudicial.  See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlop v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, no further notice is required with regard to the current increased rating claim on appeal.

Regarding the duty to assist, VA has obtained the Veteran's VA treatment records, his private audiological testing results, and has provided him with multiple VA examinations.  Collectively, these examination reports include all necessary findings, including reports of the Veteran's functional impairment.  See Martinak v. Nicholson, 21 Vet. App. 447 (2007). 

Moreover, the Agency of Original Jurisdiction complied with the Board's July 2013 remand directives to the extent possible.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998).  The Board remanded the Veteran's claim to make additional efforts to ascertain which word recognition test was used during a June 2009 private audiological evaluation.  While the Veteran was requested to provide authorization for VA to obtain this information on his behalf, he did not respond to this request.  Regardless, the Board will concede for purposes of this decision that the word recognition test used during the June 2009 private audiological evaluation was the Maryland CNC test.  Accordingly, the Veteran is not prejudiced by any failure to specifically obtain this information.  

Accordingly, the duty to assist has been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim for an increased disability rating for service-connected bilateral hearing loss.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  

Increased disability ratings

Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder.  38 U.S.C.A. § 1155.  Separate diagnostic codes identify the various disabilities.  Id.  It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor.  38 C.F.R. § 4.3.  If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2013).  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991).  While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  However, the Veteran is appealing the initial assignment of a disability rating, as such, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time.  Fenderson v. West, 12 Vet. App. 119 (1999).  Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology.  Any change in a diagnostic code by VA must be specifically explained.  Pernorio v. Derwinski, 2 Vet. App. 625 (1992).

Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  38 C.F.R. 4.6 (2013).  Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6 (2013).

It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (2013) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses).

Rating defective hearing is based on organic impairment of hearing acuity, as measured by the results of controlled speech discrimination testing, together with the average hearing threshold level, as measured by puretone audiometry tests, in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz.  See 38 C.F.R. § 4.85, Diagnostic Code 6100 (2013).

To rate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI.  Id.  Pursuant to VA's rating schedule, the assignment of a disability rating for hearing impairment is derived by a purely mechanical application of the rating schedule to the numeric designations derived from the results of audiometric evaluations.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  

Other than in exceptional cases of hearing loss, VA arrives at the proper designation of hearing loss in each ear by mechanical application of 38 C.F.R. § 4.85, Tables VI and VII, to arrive at a rating based upon the respective Roman numeral designations for each ear.  

Exceptional hearing loss exists if there is 30 decibels or less of loss at 1,000 Hertz 
and 70 decibels or more at 2,000 Hertz; or 55 decibels or more at all relevant frequencies.  38 C.F.R. § 4.86 (2013).  There is no evidence of an exceptional pattern of hearing loss in the Veteran's case.

In the instant case, the severity of the Veteran's hearing impairment was evaluated during an April 2004 VA audiological examination.  At that time, the Veteran reported that he had trouble understanding conversations, especially when background noise was present.  Audiometric testing revealed puretone thresholds recorded in decibels as follows: 




HERTZ



1000
2000
3000
4000
Average
RIGHT
25
20
45
50
35
LEFT
25
30
45
55
38.75

Maryland CNC speech recognition testing revealed a score of 100 percent for both ears.  These results equate to an assignment of level I hearing loss for the both ears upon application of Table VI.  These levels correspond to a noncompensable disability rating when applied to Table VII.  See 38 C.F.R. § 4.85 (2013).

A subsequent VA audiological evaluation was conducted in September 2004.  The results of audiometric testing performed during the evaluation are as follows, with puretone thresholds recorded in decibels: 




HERTZ



1000
2000
3000
4000
Average
RIGHT
20
20
50
55
36.25
LEFT
25
25
50
55
38.75

Speech recognition ability was 92 percent in the right ear and 96 percent in the left ear.  Assuming these speech recognition scores would be equivalent to results rendered from Maryland CNC testing, these results again equate to an assignment of Level I hearing loss in both ears, thus corresponding to a noncompensable disability rating when applied to table VII.  See 38 C.F.R. § 4.85 (2013).
The Veteran was afforded another VA audiological examination in May 2008; however, audiometric test results were not reported because the examiner deemed the results to be unreliable.  

In a June 2008 statement, the Veteran noted that his quality life had been adversely affected as a result of his hearing loss.  

Subsequently, a new VA examination was conducted in February 2009.  The Veteran reported to the examiner that he had problems understanding the television, as well as background noise.  He indicated that he had hearing aids, but that they were not helpful.  Results of audiometric testing performed are as follows, with puretone thresholds recorded in decibels:  




HERTZ



1000
2000
3000
4000
Average
RIGHT
20
30
55
65
42.5
LEFT
30
35
55
70
47.5

Maryland CNC speech discrimination testing revealed that the Veteran's speech recognition ability was 96 percent for both ears.  These results result in findings of hearing acuity of Level I in both ears, which again equate to a noncompensable disability rating under when applied to Table VII.  See 38 C.F.R. § 4.85 (2013).

The record additionally includes a June 2009 private clinical audiological report with results of audiometric testing.  Audiometric testing results from the private evaluation are as follows, with puretone thresholds recorded in decibels:  




HERTZ



1000
2000
3000
4000
Average
RIGHT
25
35
55
60
43.75
LEFT
25
40
55
65
46.25

While speech discrimination scores were not clearly legible in the original copy of the June 2009 private audiological evaluation, the Veteran's private audiologist noted in an April 2013 letter that the speech discrimination results showed 96 percent speech discrimination in both ears.  The audiologist did not note which speech discrimination test was used, however.  Nonetheless, affording the Veteran the benefit of the doubt, the Board will assume that the Maryland CNC test was used.  As such, the Veteran would again be found to have level I hearing loss for both ears; which again equates to a noncompensable disability rating upon application to Table VII.  

The Veteran was afforded a more recent VA audiological examination in April 2012.  He reported that he was able to hear at only a fair level without his hearing aids.  He reported having difficulty with deciphering certain words and with hearing in the presence of background noise, and that as a result, he was forced to rely on lip reading.  

Results of audiometric testing performed during the April 2012 VA examination are as follows, with puretone thresholds recorded in decibels:  





HERTZ



1000
2000
3000
4000
Average
RIGHT
30
35
55
70
47.5
LEFT
35
45
60
80
55

Maryland CNC speech discrimination testing revealed that speech recognition ability was 96 for both ears.  These results warrant findings of Level I hearing acuity in both ears, which again equate to a noncompensable disability rating under when applied to Table VII.  

In August 2012, another VA audiologist provided an addendum examination report wherein she indicated that VA examination dated in February 2009 and April 2012 used the Maryland CNC test, while VA evaluations dated in September 2004 and June 2009 used the CID W22 test.  Notably, however, the Board observes that the Veteran did not undergo a VA audiological evaluation in June 2009.  Rather, the results referred to be the examiner are those from the Veteran's private audiological evaluation.  The examiner then noted that it could not be determined as to which speech recognition test was used during the Veteran's private evaluation.  

Due to the inaccuracies in the VA examiner's addendum report, this report is of only limited probative value.  In any regard, the Board is affording the Veteran the benefit of the doubt and conceding use of the Maryland CNC test or otherwise treating speech discrimination testing results as equivalent to Maryland CNC test results.

Considering all of the evidence of record, the Board finds that the Veteran is not entitled to a compensable disability rating for his service-connected bilateral hearing loss at any point during the appellate period.  Notably, none of his VA or private audiological evaluations or examinations show that his hearing acuity has reached such a severity as to warrant a compensable disability rating.  See 38 C.F.R. § 4.85, Tables VI & VII (2013).  Thus, a noncompensable disability rating must remain assigned.

Additionally, the Board has considered the Veteran's statements of record regarding his hearing loss, including his reports to VA examiners regarding difficulties understanding conversations, understanding the television, difficulty deciphering certain words, and his general difficulty with hearing in the presence of background noise.  His described symptomatology, however, does not alter the Board's rating assignment.

While the Board has considered the applicability of the benefit-of-the-doubt doctrine with respect to whether the Veteran is entitled to a compensable disability rating for service-connected bilateral hearing loss, a preponderance of the evidence is against his claim.  See 38 U.S.C.A. § 5107(a) (West 2002); Ortiz v. Principi, 274 F. 3d. 1361, 1365 (Fed. Cir. 2001).  Therefore, the Veteran's claim of entitlement to a compensable disability rating for his service-connected bilateral hearing loss must be denied.  



Extra-schedular Consideration and TDIU

The rating schedule represents as far as is practicable, the average impairment of earning capacity.  Ratings will generally be based on average impairment.  See 38 C.F.R. § 3.321(a), (b) (2013).  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), for determining whether a Veteran is entitled to an extraschedular 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 extraschedular 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).  

The symptoms associated with the Veteran's service-connected hearing loss (i.e., difficulty understanding conversation, hearing the television, deciphering certain sounds, and difficulty with hearing in the presence of background noise) are contemplated by the rating criteria set forth above, and reasonably assess the severity of his disability, even though at a noncompensable level.  The applied rating criteria are, therefore, adequate to evaluate the Veteran's disability and referral for consideration of an extraschedular rating is not warranted in this case.

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on individual unemployability (TDIU) due to service-connected disability is part of an initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record.  In the instant case, the Veteran has not clearly asserted that his hearing loss has impeded his employment.  In short, there is no evidence of record to suggest that the Veteran's service-connected hearing 

disability has rendered him unemployable.  Thus, consideration of a TDIU is not warranted at this time.


ORDER

A compensable disability rating for bilateral hearing loss is denied.  



____________________________________________
DEMETRIOS G. ORFANOUDIS
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs