Citation Nr: 1410107 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 11-25 938 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an evaluation in excess of 40 percent for the service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: American Red Cross ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran had active service from October 1951 to September 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Veteran withdrew his request for hearing before the Board in September 2013; consequently, there are no outstanding hearing requests of record. 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). FINDING OF FACT Based on audiometric test results, the service-connected bilateral hearing loss is shown to be productive of disability resulting in at worse a Level IV designation in right ear and Level XI designation in the left ear under 38 C.F.R. § 4.85, Table VI, for hearing impairment based on puretone threshold average and speech discrimination, which results in no more than a 30 percent rating under Table VII; applying the exceptional patterns of hearing loss as contemplated under 38 C.F.R. § 4.86(a) also results in no more than a 30 percent rating under Table VIa (disability resulting in at worse a Level IX designation in the left ear). CONCLUSION OF LAW The criteria for the assignment of a rating in excess of 40 percent for the service-connected bilateral hearing have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.85, 4.86 including Tables VI -VII (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the Veteran's claims. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the Veteran pre-adjudication notice by letter dated in October 2008. VA has obtained service treatment records, assisted the Veteran in obtaining post-service treatment records, and afforded the Veteran VA examinations in connection with his claim for increase for bilateral hearing loss. The Veteran was also afforded the opportunity to give testimony before the Board; however, as noted in the Introduction, he withdrew his request. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. II. Analysis The Board has reviewed all the evidence in the Veteran's paper claims file and virtual record, which does not contain any pertinent information. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. When considering functional impairment caused by a service-connected disorder, evaluations should be based on an assessment of the lack of usefulness, and adjudicators should consider the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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, 1 Vet. App. at 594. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). Historically, service connection was awarded for left ear hearing loss in a March 1990 decision. An initial 10 percent evaluation was assigned effective in April 1989. In May 1994, the disability was recharacterized as bilateral hearing loss. In May 2002, the RO awarded an increased 40 percent rating effective from May 2001. The Veteran filed a claim for increase in October 2008. The RO continued the 40 percent rating in January 2009 and the Veteran initiated the instant appeal. Assignments of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. 38 C.F.R. §§ 4.85, 4.86, Tables VI, VIA, VII. Audiometric evaluations are conducted using the controlled speech discrimination tests together with the results of the puretone audiometry test. 38 C.F.R. § 4.85(a). Numeric designations (I through XI) are assigned by application of Table VI, in which the percentage of discrimination is intersected with the puretone decibel loss. 38 C.F.R. § 4.85, Table VI. The results are then applied to Table VII, for a percentage rating. Id. "Puretone threshold average," as used in Tables VI and VIA, is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. This average is used in all cases (including those in § 4.86) to determine the Roman numeral designation for hearing impairment from Table VI or Table VIA. 38 C.F.R. § 4.85(d). Under 38 C.F.R. § 4.86, evaluation of veterans with certain patterns of exceptional hearing impairment is contemplated. In the case where puretone thresholds are 55 decibels or more at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz), either Table VI or Table VIA is applied, and whichever results in the higher numeral shall be applied. 38 C.F.R. § 4.86(a). In addition, when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the higher numeral of Table VI or Table VIA is also applied. 38 C.F.R. § 4.86(b). The Board has thoroughly reviewed all the evidence of record and after careful consideration, finds that the preponderance of the evidence is against a finding that the Veteran's bilateral hearing loss warrants a rating in excess of the 40 percent evaluation currently assigned. See 38 C.F.R. §§ 4.3, 4.7; see Hart, supra. In this regard, a December 2008 audiogram contained puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 15 45 LEFT 55 70 85 105 105 The Veteran's right ear manifested an average puretone threshold of 20 decibels and the left ear manifested an average puretone threshold of 91.25 (rounded to 91). Speech discrimination was 70 percent right ear and 0 percent left ear. The right ear test results translate to a Level IV designation and the left ear tests results translate to a Level XI designation under Table XI for hearing impairment based on puretone threshold average and speech discrimination. See 38 C.F.R. § 4.85(d). Together a Level IV and a Level XI results in a 30 percent rating (less than what the Veteran currently has) under 38 C.F.R. § 4.85, Table VII, and the Board finds there is no basis for a higher rating based on these test results. The Veteran's left ear sensorineural hearing loss did fall under the exceptional patterns of hearing loss as contemplated under 38 C.F.R. § 4.86(a), as each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) were 55 decibels at each threshold or more. However, as delineated above, when applying the Veteran's numeric designation of hearing impairment under both Table VI and Table VIa, the left ear would result in a 30 percent rating and no higher. It did not fall under the exceptional patterns of hearing loss contemplated under 38 C.F.R. § 4.86(b); the puretone thresholds were not 30 decibels or less at 1000 Hertz, though 85 decibels at 2000 Hertz, in the left ear. 38 C.F.R. § 4.86(b). A private audiogram dated in December 2009 shows puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 15 20 25 LEFT 55 80 95 - 105 The Veteran's right ear manifested an average puretone threshold of 18.75 (19) decibels and the left ear manifested an average puretone threshold of 70. Speech discrimination was 100 percent in the right ear and 0 percent in the left ear. Assuming the speech recognition ability scores were obtained using the Maryland CNC word test, the right ear test results translate to a Level I designation and the left ear tests results translate to a Level XI designation under Table VI for hearing impairment based on puretone threshold average and speech discrimination. See 38 C.F.R. § 4.85(d). Together a Level I and a Level XI results in a 10 percent rating (less than what the Veteran currently has) under 38 C.F.R. § 4.85, Table VII, and the Board finds there is no basis for a higher rating based on these test results. The Board has considered whether the Veteran's hearing loss fell into one of the exceptional patterns that would allow for employment of a different Table; however, the frequency at 3000 Hertz was not recorded. It did not fall under the exceptional patterns of hearing loss contemplated under 38 C.F.R. § 4.86(b); the puretone thresholds were not 30 decibels or less at 1000 Hertz, though 95 decibels at 2000 Hertz, in the left ear. 38 C.F.R. § 4.86(b). A June 2011 audiogram contained puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 12 24 35 LEFT 50 70 85 105 105 The Veteran's right ear manifested an average puretone threshold of 19 (20) decibels and the left ear manifested an average puretone threshold of 91.25 (91). Speech discrimination was 88 percent right ear and 0 percent left ear. Based on these findings, the right ear test results translate to a Level II designation and the left ear tests results translate to a Level XI designation under Table VI for hearing impairment based on puretone threshold average and speech discrimination. See 38 C.F.R. § 4.85(d). Together a Level II and a Level XI results in a 10 percent rating (less than what the Veteran currently has) under 38 C.F.R. § 4.85, Table VII, and the Board finds there is no basis for a higher rating based on these test results. The Veteran's left ear sensorineural hearing loss did fall under the exceptional patterns of hearing loss as contemplated under 38 C.F.R. § 4.86(a), as each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) were 55 decibels at each threshold or more. However, as delineated above, when applying the Veteran's numeric designation of hearing impairment under both Table VI and Table VIa, the left ear would result in a 10 percent rating and no higher. It did not fall under the exceptional patterns of hearing loss contemplated under 38 C.F.R. § 4.86(b); the puretone thresholds were not 30 decibels or less at 1000 Hertz, though 85 decibels at 2000 Hertz, in the left ear. 38 C.F.R. § 4.86(b). In Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the Court noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10. The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing loss disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. The June 2011 VA examiner found that the Veteran's hearing loss did not impact the ordinary conditions of daily life. The effects on occupation were listed as hearing difficulty and difficulty following instructions. This satisfies the requirement in Martinak. The Veteran has not alleged any examination deficiency let alone demonstrate prejudice due to any examination deficiency. Id. The Veteran is competent, as a layperson, to report on that as to which he has personal knowledge, such as difficulty hearing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2) (2012). Nevertheless, as a layperson, without the appropriate medical training and expertise, he is not competent to provide a probative (persuasive) opinion on a medical matter, especially the severity of his bilateral hearing loss disability in terms of the applicable rating criteria. Rather, this necessarily requires appropriate medical findings regarding the extent and nature of his bilateral hearing loss, including audiometric testing for puretone thresholds. Since he is not competent to provide probative evidence in this regard, there is necessarily no need to additionally consider the credibility of his lay statements. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran's claim hinges on a mechanical application of specifically defined regulatory standards. Although the Board is mindful of the Veteran's description of his hearing loss (total loss in the left ear); regrettably, the Board is bound by the very precise nature of the laws governing evaluations of hearing loss disability. Accordingly, the Veteran's claim of entitlement to a rating in excess of 40 percent must be denied. Finally, as was discussed above, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Hart, supra. In this case, the medical evidence of record, which has been discussed above, supports the proposition that the Veteran's service-connected bilateral hearing loss has not changed appreciably since the Veteran filed his claim in October 2008, in fact it would appear that his hearing even improved. There are no medical findings or other evidence that would allow for the assignment of a disability rating in excess of 40 percent at any time during the period of time here under consideration. Id. Should the Veteran's disability picture change in the future, he may be assigned a higher rating. See 38 C.F.R. § 4.1. The Court has held that, when evidence of unemployability is presented, the issue of whether a total compensation rating based on individual unemployability (TDIU) will be assigned, should be handled during the determination of the initial disability rating assigned at the time disabilities are determined to be service connected. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). In Rice, the Court determined that there is no freestanding claim for a TDIU rating. Id. at 451. In the instant case, the Veteran has not raised the issue of a TDIU rating with respect to his bilateral hearing loss claim. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). As the Veteran has not raised such a claim and there is no objective evidence of unemployability due to the service-connected bilateral hearing loss, a claim for a TDIU rating is not presented in the instant case. Finally, the Board has considered whether extraschedular consideration is warranted. The symptoms (decreased hearing) and resulting impairment (controlled speech discrimination tests together with the results of the puretone audiometry test) demonstrated with regard to the Veteran's bilateral hearing loss fall within the schedular criteria. The rating criteria contemplate higher ratings; however, assignments of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. 38 C.F.R. §§ 4.85, 4.86, Tables VI, VIA, VII. The results of such testing were applied to Table VII and did not result in a higher percentage rating. Id. The effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Entitlement to an evaluation in excess of 40 percent for the service-connected bilateral hearing loss is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs