Citation Nr: 1342995	
Decision Date: 12/27/13    Archive Date: 01/07/14

DOCKET NO.  10-01 518	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas


THE ISSUE

Entitlement to a compensable rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

J.B. Freeman, Counsel


INTRODUCTION

The Veteran (appellant) served on active duty from June 1968 to May 1970.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the RO in Houston, Texas, which, in pertinent part, denied a compensable rating for bilateral hearing loss.  The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Veterans Benefits Management System" and on the "Virtual VA" system to insure a total review of the evidence.  

The Veteran requested a personal hearing before a Member of the Board at the RO in his December 2009 substantive appeal.  The Veteran withdrew the request in a September 2013 submission.  The Board may proceed.  38 C.F.R. § 20.704(e) (2013).


FINDINGS OF FACT

1.  The Veteran's hearing loss has been productive of no worse that Level I hearing impairment bilaterally.  

2.  The schedular ratings criteria are adequate to rate the Veteran's service-connected bilateral hearing loss.  


CONCLUSION OF LAW

The criteria for a compensable evaluation for bilateral hearing loss are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 (2013).







REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claim for a compensable rating for bilateral hearing loss.  See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326.

When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Id.  To satisfy the first notice element for an increased-compensation claim, 38 U.S.C.A. § 5103(a) compliant notice must notify the claimant that, 1) medical or lay evidence demonstrating a worsening or increase in severity of the disability is needed to substantiate a claim, 2) a disability rating will be determined by applying relevant Diagnostic Codes based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment, and 3) provide examples of the types of medical and lay evidence relevant to establishing entitlement to increased compensation.  Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 107 (2010).  A December 2007 letter fully satisfied the duty to notify provisions, including notice of the degree of disability prior to initial adjudication of the Veteran's claim in July 2008.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).  

The Board also concludes VA's duty to assist in obtaining records has been satisfied.  The Veteran's service and VA treatment records are in the file.  The Veteran's prison treatment records have been obtained, to the extent possible.  The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim.

The RO provided the Veteran appropriate VA examinations in 2008 and 2012 in connection with this claim.  To be adequate, a VA audiological examination report must fully describe the functional effects caused by a hearing disability in addition to dictating objective test results.  Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  On both occasions, the VA examiners indicated that the Veteran did not cooperate with the audiometric scoring such that the results were invalid.  The 2008 VA examination report indicates that the Veteran had 82 percent speech discrimination in the right ear and 96 percent in the left ear, but declined to provide pure tone threshold scores because they were inconsistent with the speech discrimination scores.  The 2012 VA examination report indicates that the Spondee thresholds for the right ear were 30 dB poorer than pure tone threshold average.  The Spondee thresholds for the left ear were 24 dB better than the pure tone average.  The Veteran was reinstructed regarding his responses, but the examiner was unable to resolve the inconsistencies.  The June 2008 VA examination report includes a brief description of the functional effects of the bilateral hearing loss disability.  See Martinak.  While VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street.  See Wood v. Derwinski, 1 Vet. App. 190 (1991).  It is incumbent upon an Veteran to submit to and cooperate with VA examinations when applying for a VA benefit, especially in instances, such as in this case, where the examination is essential to assessing the current severity of his service- connected disability.  38 C.F.R. § 3.326.  Because the Veteran was provided two VA examinations and failed to cooperate with either, the Board will rate his disability based on the evidence of record.  

Disability Ratings

The Veteran contends that he is entitled to a compensable rating for bilateral hearing loss.  For the reasons that follow, the Board concludes that an increased rating is not warranted.

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations.  Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3.  

In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by pure tone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second.  38 C.F.R. § 4.85.  These scores are then used to establish the appropriate disability rating using Tables VI, VIa, and VII.  38 C.F.R. §§ 4.85, 4.86.

The Veteran has been incarcerated throughout the period on appeal.  The Veteran's prison treatment records contain three audiometric examination reports.  The first, from May 2007, does not have speech discrimination test scores.  As such, this report is not adequate for rating purposes.  See 38 C.F.R. § 4.85 (2013).  The others, from September and December 2007, have both speech discrimination test scores and pure tone threshold scores.  The reports do not indicate that the speech discrimination tests were conducted using the Maryland CNC or an equivalent test; the Board assumes that they were at least equivalent to the Maryland CNC for the purposes of this decision.  

On the authorized audiological evaluation in September 2007, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
75
80
75
75
75
LEFT
40
45
65
65
60

Speech recognition scores were 64 percent on NU6 and 76 percent quiet on the right and 90 percent on the left.  The audiologist noted that the reliability of the thresholds scores was "fair".  

On the authorized audiological evaluation in December 2007, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
70
80
75
N/A
70
LEFT
40
40
65
N/A
60

Speech recognition scores were 72 percent on the right and 82 percent on the left.  The audiologist noted that the reliability of the thresholds scores was "fair."  The audiologist also noted positive Stenger scores in certain ranges.

The Board finds these test results unreliable for rating purposes for several reasons.  The December 2007 scores are missing the pure tone thresholds at 3,000 Hz, rendering this test inadequate for ratings purposes.  The September and December 2007 scores are consistent with one another, but reliability was considered only "fair."  The notation of positive Stenger scores indicates that these scores are not a reliable basis for evaluating hearing loss.  The Stenger test is used to determine if a subject is feigning hearing loss.  Dorland's Illustrated Medical Dictionary 1924 (31st ed. 2007).  The presence of positive Stenger results in the December 2007 results and their similarity to the September 2007 results implies that the Veteran feigned disability at both tests.  The Board turns to the other evidence of record.  

The RO arranged for the Veteran to undergo two VA examinations in connection with this claim.  On both occasions, the examiners declined to provide pure tone threshold scores due to the Veteran's lack of cooperation.  The examiners did provide speech discrimination scores, but, in the absence of pure tone threshold scores, these cannot be applied to the ratings criteria.  38 C.F.R. §§ 4.85, 4.86.

When VA attempts to provide a veteran with an adequate medical examination and the veteran fails to cooperate, the Board must rely on whatever available evidence exists to determine the appropriate disability rating.  Olson v. Principi, 3 Vet. App. 480, 482 (1992).  The Veteran had two prior claims related to bilateral hearing loss, his original claim for service connection and a claim for an increased rating.  The Veteran was granted service connection for bilateral hearing loss in an October 1998 rating decision based on an April 1970 separation from service physical examination report.  The October 1998 rating decision indicated that the Veteran failed to report for an audiology examination at that time and relied on the separation examination report alone.  The Veteran's claim for an increased rating was denied in a July 2002 rating decision which relied on a December 2000 VA physical examination noting grossly intact hearing.  No audiometry tests were performed or were associated with the record in conjunction with the increased rating claim.  In light of the past claims history, the Board must rely on the April 1970 separation examination results to rate the Veteran's bilateral hearing loss disability.  See Olson.  

In April 1970, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
20
30
50
LEFT
15
10
20
30
50

Speech discrimination ability was not tested.  The Veteran had pure tone threshold averages in the 1,000 to 4,000 Hz ranges of 28.75 on the right and 27.5 on the left.

In the absence of speech recognition testing, the April 1970 results are not adequate to apply Table VI.  See 38 C.F.R. § 4.85.  Use of Table VIa is appropriate when an examiner certifies that the use of speech discrimination test are not appropriate because of language difficulties, inconsistent scores or when there is an exceptional hearing loss pattern as defined in 38 C.F.R. § 4.86.  Id.  Even relying on Table VIa, the Veteran would receive Roman numeral designations of I in each ear.  A compensable rating would not be warranted on that basis.  38 C.F.R. § 4.85.

The Board finds that the noncompensable evaluation currently assigned adequately reflects the impairment experienced by the Veteran.  Thus, his request for a compensable evaluation is denied on a schedular basis.  See 38 C.F.R. § 4.85.

Where entitlement to compensation 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.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged."  Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007).  The Board has considered the possibility of staged ratings.  The Board, however, concludes that the criteria for a compensable rating have at no time been met.  Accordingly, staged ratings are inapplicable.  See id.  

The Board has also considered whether a referral for extraschedular rating is warranted.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  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.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule; therefore, the assigned schedular evaluation is adequate, and no referral is required.  See VAOPGCPREC 6-96; see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  

The schedular criteria are adequate to rate the Veteran's bilateral hearing loss disability.  The June 2008 VA examination report addressed the functional effects caused by the Veteran's bilateral hearing loss disability, noting general situations of greatest difficulty hearing of noise and other people talking.  The Veteran did not describe the functional impact of his bilateral hearing loss in any of the statements in support of this claim that were received.  The schedular rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns which are not demonstrated in this case, and as measured by both audiological testing and speech recognition testing.  Diminished auditory acuity and speech recognition testing are the foundation of the schedular criteria.  Moreover, the testing is to be performed without the use of hearing aids.  See 38 C.F.R. § 4.85(a).  The scores represent a rating made on the worst possible objective measure of performance.  In other words, the Veteran does not have any symptoms from the service-connected hearing loss disability that are unusual or are different from those contemplated by the schedular rating criteria.  Referral for extraschedular consideration is not warranted.  See VAOPGCPREC 6-96.  

As such, the Board finds that the preponderance of the evidence is against the Veteran's increased rating claim.  Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Entitlement to a compensable rating for bilateral hearing loss is denied.




____________________________________________
K.J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs