Citation Nr: 1416263 Decision Date: 04/11/14 Archive Date: 04/24/14 DOCKET NO. 08-22 015 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an initial compensable rating for bilateral sensorineural hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Bruce, Counsel INTRODUCTION The Veteran served on active duty from September 1971 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska which, in pertinent part, granted service connection for a bilateral hearing loss disability and assigned a noncompensable rating. The claim was previously remanded in April 2012 for additional development, that development having been achieved, the claim is now ready for appellate review. It is noted that claims of service connection for left hip and respiratory disabilities are not currently before the Board as the Veteran did not file an appeal as to these matters. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT Audiological evaluations reflect that the Veteran's service-connected bilateral hearing loss has been manifested by no worse than Level II hearing impairment in the left ear and no worse than Level III in the right ear. CONCLUSION OF LAW The criteria for an initial compensable rating for service-connected bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.150, 3.321, 3.385, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet.App. 183 (2002). Proper VCAA notice must inform the Veteran 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. See 38 C.F.R. § 3.159(b)(1). In May 2007, the RO provided VCAA notice with respect to the Veteran's claim for an initial compensable rating for bilateral hearing loss. In cases like this one, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been substantiated, thereby rendering section 5103(a) notice no longer necessary because the purpose the notice is intended to serve has been fulfilled. See Dingess/Hartman v. Nicholson, 19 Vet.App. 473, 491 (2006). The current appeal is a result of a notice of disagreement with the ratings assigned, and thus gives rise to no further duty to notify under VCAA. See 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice arises upon receipt of a notice of disagreement). With regard to the duty to assist, the claims file contains the Veteran's service treatment records, VA and private medical records, multiple lay statements, and multiple VA examination reports. In the April 2012 remand the Board requested that the AMC obtain additional treatment records and afford him a new VA examination. The record reflects that all available treatment records were obtained and associated with his claims file. A VA examination was obtained. Thus, the Board's remand instructions have been complied with. See Stegall v. West, 11 Vet.App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); see also Dyment v. West, 13 Vet.App. 141, 146-47 (1999) (although under Stegall VA is required to comply with remand orders, substantial compliance, not absolute compliance, is required). The Veteran was provided with VA examinations in May 2007 and May 2012. The reports of the examinations reflect that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate physical examination, and rendered an appropriate diagnosis consistent with the remainder of the evidence of record, and pertinent to the rating criteria. See Barr v. Nicholson, 21 Vet.App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examinations are adequate for rating purposes. See 38 C.F.R. § 4.2 (2013). All appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. All relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claims. Essentially, all available evidence that could substantiate the claims has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. Merits of the Claims Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2013). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). 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 any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2 (2013). It is the responsibility of the rating specialist to interpret reports of examination in the 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 present. 38 C.F.R. § 4.2 (2013). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2013). 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. 38 C.F.R. § 4.7 (2013). Hearing loss is evaluated under 38 C.F.R. §§ 4.85, 4.86 (2013), Diagnostic Code 6100, Tables VI, VIA, VII of VA's rating schedule. The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. 38 C.F.R. § 4.85 (2013). Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. The Court has held that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Veteran's service-connected hearing loss is currently assigned a noncompensable disability evaluation pursuant to 38 C.F.R. § 4.85 (2013), Diagnostic Code 6100. The Veteran contends that his hearing loss is more severe than the currently assigned noncompensable rating. In a May 2007 VA audiological examination, the Veteran exhibited the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 25 70 LEFT 15 15 20 20 50 The average puretone threshold decibel loss was 32.5 in the right ear, and 26.25 in the left ear. Speech audiometry (Maryland CNC) revealed speech recognition ability of 94 percent in the right ear and of 86 percent in the left ear. The results in this evaluation reveal that the Veteran's hearing loss was manifested by no more than level I hearing acuity in the right ear and level II hearing acuity in the left ear. Such designations equate to a noncompensable evaluation. A May 2012 VA audiological assessment revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 20 50 70 LEFT 20 20 25 35 55 The average puretone threshold decibel loss was 40 in the right ear and 34 in the left ear. Speech audiometry (Maryland CNC) revealed speech recognition ability of 76 percent in the right ear and of 90 percent in the left ear. The results in this evaluation reveal that the Veteran's hearing loss was manifested by no more than level III hearing acuity in the right ear and level II hearing acuity in the left ear. Such designations equate to a noncompensable evaluation. There are additional private audiological examination reports dated in May 1999, and March 2004, March 2005, March 2006, and March 2008. These examinations do not include Maryland CNC speech recognition scores. The puretone threshold decibel loss in each examination appears to be in line with the above noted puretone thresholds. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. 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). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Applying the findings of the May 2007 and May 2012 to the rating criteria for hearing impairment, the Board finds that the criteria for an initial compensable evaluation for bilateral hearing loss have not been met. As previously noted, the Veteran's left ear manifested an average puretone threshold of 26.25 dB, with a 86 percent speech discrimination and the right ear manifested an average puretone threshold of 32.5 dB, with a 94 percent speech discrimination in the May 2007 VA evaluation. In the May 2012 VA audiological evaluation the Veteran's left ear manifested an average puretone threshold of 34 dB, with a 90 percent speech discrimination and the right ear manifested an average puretone threshold of 40 dB, with a 76 percent speech discrimination. Reference to 38 C.F.R. § 4.85, Table VI, shows his left ear hearing loss to be no more than a Level II in either of the two audiological examinations. His right ear hearing loss exhibited a Level I in the May 2007 evaluation and a Level III in the May 2012 evaluation. Such designations equate to a noncompensable evaluation for the entire appeal period. See 38 C.F.R. § 4.85(f) (2012). As such, the probative evidence fails to demonstrate a more severe hearing loss disability than is currently addressed by the Veteran's noncompensable disability rating. Therefore, the claims for entitlement to an initial compensable rating must be denied. The Board acknowledges the Veteran's contentions that his hearing impairment is worse than his noncompensable rating entails. Regarding the Veteran's statements, the Board acknowledges that he is competent to give evidence about his experiences; i.e., he is competent to report that he is having greater trouble hearing. See Charles v. Principi, 16 Vet. App. 370, 274 (2002) (finding Veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). However, the Veteran is not competent to testify that his hearing has worsened to a level requiring a compensable disability rating under the Diagnostic Code 6100. The Board must rely upon competent medical evidence to determine the diagnosis or clinical features of a disease or disorder. The Board may not draw its own medical conclusions in reaching a decision. Colvin v. Derwinski, 1 Vet. App. 171 (1991). While the Veteran, as a lay person, is competent to provide evidence regarding injury and symptomatology, he is not competent to provide evidence regarding diagnosis or the clinical severity of a disability. Only a medical professional can provide evidence of diagnosis or clinical severity of a disease or disorder. In this regard, the Board places significantly more weight on the objective clinical findings reported on examination than the Veteran's own subjective statements in support of his claim. See Smith v. Derwinski, 1 Vet. App. 235, 237 (1991) (determining the credibility of evidence is a function for the Board). Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.85 with respect to determining the severity of his service-connected bilateral hearing loss. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); see also 38 C.F.R. § 3.159(a)(1) and (2) (2013). While the Board is sympathetic to the Veteran's assertions that he has difficulty hearing, the fact remains, however, that the VA rating criteria are definitive and provide for a precise result based on audiometric test results. The Veteran's subjective reports of difficulty hearing under situational circumstances unfortunately cannot be the basis for an evaluative rating. The Board is bound to apply the VA rating schedule, under which the rating criteria are defined by audiometric test findings involving hearing acuity in a controlled laboratory environment. The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet.App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon 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 that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2013); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court set forth a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether the Veteran's disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, the Veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a Veteran's disability picture requires the assignment of an extraschedular rating. With regard to the Veteran's service-connected hearing loss disability, the evidence of record does not reflect that the Veteran's disability picture is so exceptional as to not be contemplated by the rating schedule. There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria. The rating criteria for the Veteran's currently assigned noncompensable disability rating under Diagnostic Codes 6100 contemplate his level of symptomatology. Specifically, the criteria account for the Veteran's current puretone thresholds and speech recognition ability. The Board acknowledges the Veteran's complaints of difficulty understanding speech which affects his ability to understand conversations. The Board notes that in Martinak v. Nicholson, 21 Vet.App. 447 (2007), the U.S. Court of Appeals for Veterans Claims held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak, 21 Vet. App. at 455. According to the May 2012 VA examiner, the Veteran's hearing loss does affect his daily living by making it difficult for him to understand conversations which in turn makes him avoid large groups due to feeling "frustrated and discouraged". Nevertheless, the Veteran's hearing difficulties are adequately contemplated by the rating schedule. Notably, 38 C.F.R. §§ 4.85 adequately contemplates any functional loss due to hearing impairment. As the Veteran's disability picture is contemplated by the rating schedule, the threshold issue under Thun is not met and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary. In short, the evidence does not support the proposition that the Veteran's service-connected disability presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and to warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2012). Thus, referral of this issue to the appropriate VA officials for consideration of an extraschedular evaluation is not warranted. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the Veteran's claims for a higher disability rating than that which is currently assigned. ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs