Citation Nr: 1415502	
Decision Date: 04/08/14    Archive Date: 04/15/14

DOCKET NO.  12-08 296	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to a compensable rating for service-connected hearing loss prior to December 17, 2013, and to a rating in excess of 10 percent thereafter.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

John Kitlas, Counsel


INTRODUCTION

The Veteran served on active duty from October 1955 to October 1959.

This matter is before the Board of Veterans' Appeals  (Board) on appeal from decisions promulgated in December 2010 and September 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which continued the noncompensable (zero percent) rating for the Veteran's service-connected hearing loss.  The Board acknowledges that the January 2012 Statement of the Case (SOC) indicated that this appeal originated from the September 2011 rating decision, and that the claim originated in July 2011.  However, the Veteran's September 2011 Notice of Disagreement (NOD) was received within the appeal period of the December 2010 rating decision, and stated that it was disagreeing with the rating decision that denied a compensable rating.  As such a statement could apply to both the December 2010 and September 2011 rating decision, the Board finds that the NOD applies to both decisions.  See 38 C.F.R. §§ 20.200, 20.201, 20.302 (2013).

The record reflects the assigned rating for the Veteran's hearing loss was increased to 10 percent by a January 2014 rating decision, and was effective December 17, 2013 (date of VA examination).  However, this issue remains in appellate status pursuant to the holding of AB v. Brown, 6 Vet. App. 35 (1993).  Accordingly, the appellate issue has been construed above to reflect this 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).

This appeal was processed using the VA paperless claims processing system.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.

The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2013.  A transcript of this hearing is of record.

In October 2013, the Board remanded the current appellate claim for further development to include a new VA examination of the Veteran's hearing loss.  Such an examination was accomplished in December 2013, and all other development directed by the Board's remand appears to have been substantially accomplished.  Accordingly, a new remand is not required in order to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998).  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (Remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).


FINDINGS OF FACT

1.  The record does not reflect the Veteran has an exceptional pattern of hearing loss as defined by 38 C.F.R. § 4.85(a).

2.  Prior to December 17, 2013, the Veteran was shown to have at most Level II hearing impairment for both ears.

3.  From December 17, 2013, the record reflects the Veteran had Level V hearing impairment for the right ear, and Level IV hearing impairment for the left ear.


CONCLUSIONS OF LAW

1.  The criteria for a compensable rating for the Veteran's service-connected bilateral hearing loss prior to December 17, 2013, are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.85 (Diagnostic Code 6100), 4.86 (2013).

2.  The criteria for a rating in excess of 10 percent for the Veteran's service-connected bilateral hearing loss from December 17, 2013, are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.85 (Diagnostic Code 6100), 4.86 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Preliminary Matters

The Board notes at the outset that VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  

The United States Court of Appeals for Veterans Claims (Court) has held that adequate 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.  Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).  In this case, the Veteran was sent pre-adjudication notice via a letter dated in November 2010, which is clearly prior to both the December 2010 and September 2011 rating decisions.  Although no other pre-adjudication letter appears in the record available for the Board's review, there is an August 2011 acknowledgment signed by the Veteran to the effect he received adequate notification regarding his claim.  He was also sent additional notification via letters dated in December 2011 and November 2013, followed by readjudication of the appeal by the January 2012 SOC and a January 2014 Supplemental SOC (SSOC) which "cures" the timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication.  Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34.  These letters, in pertinent part, informed the Veteran of what was necessary to substantiate his current appellate claim, what information and evidence he must submit, what information and evidence will be obtained by VA, as well as the information and evidence used by VA to determine disability rating(s) and effective date(s).

In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his hearing loss claim and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence.  Accordingly, there is no further duty to notify.  In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any 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).

In addition, the Board finds that the duty to assist the claimant in the development of his case has been satisfied.  Various records were obtained and considered in conjunction with this case.  Further, the Veteran has had the opportunity to present evidence and argument in support of his hearing loss claim, to include at the August 2013 Board hearing.  Nothing indicates the Veteran has identified the existence of any relevant evidence that has not been obtained or requested.  For example, he has not identified outstanding evidence showing hearing loss symptomatology that is not reflected by the evidence already of record.  Moreover, the record does not reflect the Veteran responded to the request that he identify any treatment he had received for his hearing loss since December 2012 as expressed in the November 2013 letter.

With respect to the August 2013 hearing, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the hearing, the VLJ accurately noted the hearing loss claim, asked questions to clarify the Veteran's contentions, and provided a general explanation of what was necessary to substantiate an increased rating claim.  Further, the Veteran, through his testimony and other statements of record, demonstrated that he had actual knowledge of the elements necessary to substantiate this claim.  Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of this hearing.  As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been satisfied. 

The Board further notes the Veteran was accorded VA medical examinations which evaluated his hearing loss in November 2010, January 2012, November 2012, and December 2013.  VA examiners are presumed qualified to render competent medical opinion(s).  See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009).  Moreover, these examinations appear to have been conducted in accord with the requirements of 38 C.F.R. § 4.85(a).  No inaccuracies or prejudice is demonstrated with respect to these examinations, nor has the Veteran indicated his hearing loss has increased in severity since the most recent examination.

The Board is cognizant of the fact that the Court held in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), that, when conducting such examinations, in addition to dictating objective test results, the VA audiologist must also fully describe the functional effects caused by a hearing disability in his or her final report.  Significantly, however, the Board points out that the Court's rationale for requiring an examiner to consider the functional effects of a Veteran's hearing loss pertained to cases where consideration of referral for an extra-schedular rating under 38 C.F.R. § 3.321(b)  might be 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 extra[-]schedular 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.  

In this case, as detailed below, all of the aforementioned VA audiological examiners commented, to some degree, on the impact of the Veteran's hearing loss on his occupational activities.  Therefore, the VA examinations comply with the holding in Martinak, supra.  The Board further notes that the other evidence of record, to include the Veteran's own statements and hearing testimony, provides sufficient information for the Board to evaluate the functional effects of his hearing loss and are sufficient for the Board to consider whether referral for an extra-schedular rating is warranted under 38 C.F.R. § 3.321(b). 

In view of the foregoing, the Board finds that the evidence of record, to include the VA audiological examinations in this case, is adequate for adjudication of the Veteran's appeal.  Therefore, the duty to assist has been satisfied.

The Board notes that it has thoroughly reviewed the record in conjunction with this case.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence).  Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims.  See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant).  

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrent symptoms.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a).  Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).  



Legal Criteria and Analysis

Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are: interpreting 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; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 ; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability.  However, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings.  

Evaluations of defective hearing are 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 pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz.  38 C.F.R. § 4.85, Diagnostic Code 6100.  To evaluate 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 exceptional cases, VA arrives at the proper designation of hearing loss in each ear by mechanical application of Table VI; Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear.  Id.  

When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 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.  38 C.F.R. § 4.86.  Further, when the average puretone threshold is 30 decibels 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 higher Roman numeral.  Each ear will be evaluated separately.  Id.

In his statements and hearing testimony, the Veteran described hearing difficulties to include having people, such as his wife and daughter, repeat themselves 2 or 3 times before he can hear clearly to respond.  Further, he described having greater difficulty hearing female as opposed to male voices.  See Transcript p.p. 3-4.  It has also been noted that he uses hearing aids.  The Board does not doubt the credibility of the Veteran in regard to his account of his own hearing difficulties, as they are clearly within the ability of a lay person to observe.  However, for the purposes of evaluated a hearing loss disability under the relevant schedular criteria, the focus is upon the results of audiological evaluations conducted in accord with the requirements of 38 C.F.R. § 4.85(a).  In this case, the only such evaluations appear to be that of the VA examinations conducted in November 2010, January 2012, November 2012, and December 2013.  Thus, it appears that only these evaluations are competent evidence for the purpose of determining the appropriate schedular rating.

The November 2010 VA audiological evaluation revealed pure tone thresholds, in decibels, as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
20
35
35
45
34
LEFT
20
30
35
50
34

Speech recognition scores were 84 percent for the right ear, and 86 percent for the left ear. 

The January 2012 VA audiological evaluation revealed pure tone thresholds, in decibels, as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
35
40
45
50
42.5
LEFT
30
40
55
55
45

Speech recognition scores were 92 percent for the right ear, and 86 percent for the left ear. 

The December 2012 VA audiological evaluation revealed pure tone thresholds, in decibels, as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
35
50
60
60
51
LEFT
35
50
60
65
52

Speech recognition scores were 86 percent for the right ear, and 84 percent for the left ear. 

The December 17, 2013, VA audiological evaluation revealed pure tone thresholds, in decibels, as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
30
50
65
70
54
LEFT
40
50
70
70
58

Speech recognition scores were 72 percent for the right ear, and 76 percent for the left ear. 

Initially, the Board notes that none of the aforementioned VA audiological evaluations show that each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more; or that the average puretone threshold is 30 decibels at 1000 Hertz, and 70 decibels or more at 2000 Hertz.  Therefore, the Veteran does not have an exceptional pattern of hearing loss as defined by 38 C.F.R. § 4.85(a), and those regulatory provisions are not for consideration in the instant case.

Regarding the period prior to December 17, 2013, the Board notes that the results of the November 2010, January 2012, and December 2012 VA audiological evaluations all correspond to Level II hearing impairment for the left ear under Table VI.  The results of the November 2010 and December 2012 VA evaluations also correspond to Level II hearing impairment for the right ear under Table VI, while the January 2012 results correspond to Level I hearing impairment under Table VI.  These results, in turn, correspond to the noncompensable (zero percent) rating under Table VII in effect for the period prior to December 17, 2013.

With respect to the period from December 17, 2013, the Board notes that the results of the VA audiological evaluation conducted that date correspond to Level V hearing impairment for the right ear under Table VI, and Level IV hearing impairment for the left ear.  These results, in turn, correspond to the 10 percent rating under Table VII that has been in effect since December 17, 2013.

In view of the foregoing, the Board must find that the Veteran does not meet or nearly approximate the criteria for a compensable rating for his hearing loss prior to December 17, 2013, or a rating in excess of 10 percent thereafter.  The Board notes that in making this determination it considered whether additional "staged" rating(s) were warranted.  However, a thorough review of the evidence of record does not reflect there were any distinctive period(s) where the Veteran satisfied the criteria for ratings in excess of those currently in effect.

In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321.  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 Board finds that the rating criteria contemplate the Veteran's disability in that the purpose of the criteria is to evaluate the level of hearing loss, which naturally includes difficulty hearing sounds such as conversation.  As such, the manifestations described by the Veteran, to include having people repeat themselves so he can hear them clearly and the use of hearing aids, are contemplated in the rating criteria.  He has not identified any exceptional or unusual symptoms regarding his hearing difficulties.  The rating criteria are therefore adequate to evaluate the Veteran's service-connected hearing loss disability and referral for consideration of extraschedular rating is not warranted.

Lastly, the Board notes that notes that, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim of entitlement to a total rating based upon individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record.  The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability.  Id. 

In this case, however, nothing in the record indicates that the Veteran is unable to obtain and/or maintain substantially gainful employment due to this service-connected disability to include the Veteran's own contentions as well as the VA examiners' opinions regarding the functional impact of his hearing loss.  For example, the November 2010 and January 2012 VA examinations both stated that the Veteran's hearing impairment does not prevent the attainment of gainful employment.  The December 2012 VA examination stated that the Veteran's hearing loss does not impact ordinary conditions of daily life including the ability to work.  The more recent December 2013 VA examination noted that the Veteran's type and degree of hearing loss MAY make it difficult for him to speak easily on the phone, participate in group conversations, or perform any work tasks that require verbal and auditory communication WITHOUT the use of hearing aids or other similar assistive amplification; but that WITH the appropriate accommodations in the work place, such as hearing aids, an amplified phone, and/or other assistive technology, the Veteran should be able to obtain gainful employment.  (Emphasis in original).  The Board also notes that loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1.  Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability."  Therefore, no further discussion of entitlement to a TDIU is warranted based on the facts of this case.


ORDER

A compensable rating for the Veteran's service-connected bilateral hearing loss prior to December 17, 2013, is denied.

A rating in excess of 10 percent for the Veteran's service-connected bilateral hearing loss from December 17, 2013, is denied.



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs