Citation Nr: 1418106 Decision Date: 04/23/14 Archive Date: 05/02/14 DOCKET NO. 09-41 782 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an increased rating for bilateral hearing loss, currently evaluated at 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. L. Wolinsky Associate Counsel INTRODUCTION The Veteran had active military service from 1966 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran was scheduled for a Travel Board Hearing on August 23, 2010. The Veteran cancelled his request for a hearing in August 2010. To date, he has not requested a new Board hearing, accordingly, the Board considers his hearing request to be withdrawn. 38 C.F.R. § 20.704(d) (2013). In reviewing this case, the Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on the electronic "Virtual VA" and "VBMS" system to insure a total review of the evidence. The Veteran has raised the issue of a total disability rating based on individual unemployability (TDIU) due to his service-connected bilateral hearing loss. (See VA Form 21-4138, dated August 2008; Statements, dated October 2010). The Board may infer a claim for a TDIU rating due exclusively to the service-connected bilateral hearing loss, because this is the underlying disability at issue in this appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Notably, the information of record also reflects that service connection is in effect for tinnitus. And, not all of the Veteran's ear disabilities are in appellate status before the Board, as the evaluation for the Veteran's tinnitus has not been appealed. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Therefore, to the extent the Veteran wishes to raise a TDIU claim based on more than just his service-connected bilateral hearing loss, he must file such a claim at his local Regional Office. The issue of entitlement to a TDIU rating due exclusively to the service-connected bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. On audiological testing, the Veteran's hearing acuity level was Level X in September 2008, and Level IX in January 2009 in the Veteran's left ear. 2. On audiological testing, the Veteran's hearing acuity level was Level II in September 2008, and Level I in January 2009 in the Veteran's right ear. CONCLUSION OF LAW The criteria for an increased rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.85, 4.86, Diagnostic Code 6100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Board must discuss whether VA has complied with its duties to notify and assist the Veteran in substantiating his claims. In this respect, 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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 in accordance with 38 C.F.R. § 3.159. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In a claim for an increased evaluation, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). A letter sent to the Veteran in September 2008, advised the Veteran with what information or evidence is necessary to substantiate his claim for an increased evaluation as well as his and VA's respective responsibilities in obtaining such evidence and information, and how VA determines the disability rating, and effective date. The September 2008, VCAA letter was sent prior to the rating decision in February 2009. Therefore, VA fulfilled its duty to notify. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records, as well as obtaining a medical examination or opinion of the Veteran's disability when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The RO associated the Veteran's service treatment records (STRs) and VA treatment records with the claims file. Private records from the Doctors of Audiology Hearing Care, LLC were also associated with the claims file. The Veteran has not identified any treatment records aside from those that are already of record, nor is there any indication that the Veteran has sought additional treatment relevant to the instant appeal. In January 2009, VA provided the Veteran with an audio examination and obtained a medical opinion addressing the extent of the Veteran's bilateral hearing loss and the impact to the Veteran's daily activities. The audio examination, and opinion is adequate, as the examination report shows that the examiner, considered the Veteran's relevant medical/military/occupational history, conducted a physical examination with testing and provided reasoned analysis to support the medical opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that VA must ensure that the examination provided is adequate). As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. Legal Criteria The Veteran is service-connected for bilateral hearing loss under Diagnostic Code 6100 which is currently evaluated at a 10 percent disability rating. The Veteran was granted service-connection for his left ear hearing loss in a January 1976 rating decision, and in his right ear in a February 2009 rating decision. The Veteran seeks an increased rating. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). In evaluating increased rating claims staged ratings must be considered. Id. at 509-10. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In evaluating the extent of hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. 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, and as measured by pure tone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz. The rating schedule for hearing loss establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a pure tone audiometric test. The horizontal lines in Table VI (contained in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent nine categories of decibel loss based on the pure tone audiometric test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to the pure tone decibel loss. The percentage disability evaluation is found from Table VII by intersecting the horizontal column appropriate for the numeric designation for the ear having the better hearing acuity and the vertical row appropriate to the numeric designation level for the ear having the poorer hearing acuity. Additionally, under 38 C.F.R. § 4.86(a), 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. Each ear will be evaluated separately. Moreover, under 38 C.F.R. § 4.86(b), when the pure tone threshold is 30 decibels or less at 1,000 hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results is the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. Analysis The Veteran underwent a private audio examination in September 2008. The audio results of the diagnostic test showed that the Veteran had right ear hearing of 30, 35, 55, 70 (average of 48) decibels at 1000, 2000, 3000, 4000 Hertz, and left ear hearing of 80, 100, 110, 110 (average of 98) decibels at 1000, 2000, 3000, 4000 Hertz. The Veteran's Maryland CNC speech recognition score was 88% in his right ear and 60% in his left ear. At the September 2008 consultation the Veteran was additionally fitted for hearing aids. The Veteran reported hearing loss to both ears, and tinnitus in both ears. In assessment, the physician stated that the "[r]esults indicate a severe profound mixed loss for the left ear and a mild sloping to moderate sensorineural hearing loss for the right ear." Good speech recognition was determined in the right ear, and the left ear had fair speech recognition. The Veteran was provided with a VA audio examination in January 2009. The audio results of the diagnostic test showed that the Veteran had right ear hearing of 30, 35, 45, 80 (average of 48) decibels at 1000, 2000, 3000, 4000 Hertz, and left ear hearing of 85, 90, 100, 105 (average of 95) decibels at 1000, 2000, 3000, 4000 Hertz. The Veteran's Maryland CNC speech recognition score was 96% in his right ear and 48% in his left ear. The examiner in the diagnosis portion of the exam stated that the Veteran exhibits mild to severe hearing loss in his right ear, and severe to profound hearing loss in his left ear. The Veteran also had routine audio appointments provided by Minneapolis VAMC. Audiology results from an August 2008 audiology note is noted by the Board, however the testing was incomplete for rating purposes. Thus, the Board relies on the aforementioned completed private and VA testing from September 2008 and January 2009. Based on the evidence from the September 2008 private examination, Table VI of 38 C.F.R. § 4.85 shows the Veteran's right ear hearing loss to be a Level II impairment. The Veteran's left ear impairment based on the September 2008 examination shows hearing loss to be a Level X impairment. 38 C.F.R. § 4.86(a). Applying these results to Table VII, a 10 percent evaluation is assigned. Based on the evidence from the January 2009 VA examination, Table VI of 38 C.F.R. § 4.85 shows the Veteran's right ear hearing loss to be a Level I impairment and the left ear to be a Level IX impairment. Application of Table VIA pursuant to 38 C.F.R. § 4.86(a) additionally yields a Level IX impairment to the Veteran's left ear. Applying these results to Table VII, a noncompensable evaluation is warranted. The Board has also considered the Veteran's statements that his disability is worse than the ten percent rating he currently receives. Specifically the Board considers, the Veteran's statements that his hearing loss has deteriorated to a point where he can no longer hear out of his left ear, that his hearing is so bad in his right ear that it made his work as a customer service representative frustrating, and that he has trouble localizing sound. In rendering a decision on appeal, 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). In this case, the Veteran is competent to report symptoms of hearing loss because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). In this case, his assertion that he has trouble hearing bilaterally is corroborated by the results of his audiogram testing with levels of twenty and over. The threshold for normal hearing is between 0 and 20 decibels, and any higher threshold shows some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). However, the Veteran is not competent to state what the appropriate disability rating he should receive for his hearing impairment is, or that his hearing loss meets the criteria for a VA hearing loss disability, as this is determined via audiometric evaluation. The Board relies on the competent evidence concerning the nature and extent of the Veteran's hearing impairment (to include audiometric evaluations) which has been provided by medical personnel who examined him during the current appeal and who has rendered pertinent observations in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated and are therefore found to be more probative. Thus, without medical evidence of bilateral hearing loss which merits a higher evaluation, the Veteran's condition is properly rated at 10 percent disabling. 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)(2011); 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. The evidence of record does not identify any factors which may be considered to be exceptional or unusual with respect to the Veteran's service-connected hearing loss. There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria. The Veteran's complaints of hearing loss, and problems with speech recognition, are adequately contemplated by the rating criteria under Diagnostic Code 6100. 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 for hearing loss is not necessary. ORDER Entitlement to an increased rating for bilateral hearing loss, currently evaluated at 10 percent disabling, is denied. REMAND The Veteran has raised the issue of a TDIU rating due to his service-connected bilateral hearing loss. Specifically in the Veteran's VA 21-4138 (August 2008), he stated that his hearing diminished to a point where he can no longer do his job, and in his October 2010 statements, he stated that he had to retire early due to his bilateral hearing loss disability. In Rice v. Shinseki, the Court held that when entitlement to a TDIU rating is raised during the adjudicatory process of the underlying disability (or disabilities) for an initial or an increased rating, it is a part of the claim for benefits for that underlying disability (or disabilities). See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). In this function, the Board may infer a claim for a TDIU due exclusively to the service-connected bilateral hearing loss, because this is the underlying disability at issue in this appeal. Id. The Veteran does not meet the scheduler requirement under 38 C.F.R. § 4.16(a). However, entitlement to a total rating, on an extra-schedular basis, may nonetheless be established, in exceptional cases, when the Veteran is unable to secure and follow a substantially gainful occupation by reason of a service-connected disability. 38 C.F.R. § 4.16(b). Thus, the Board finds that the Agency of Original Jurisdiction (AOJ) should address the matter of extra-schedular consideration, per 38 C.F.R. § 4.16(b), as a component of the claim for an increased rating for bilateral hearing loss, in the first instance, to avoid any prejudice to the Veteran. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask that he complete and sign a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Individual Unemployability, and a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. Each executed form should be returned to VA. Send the Veteran and his representative a letter requesting that he provide sufficient information, and, if necessary, authorization to obtain any additional evidence pertinent to the claim for a TDIU due to the service-connected bilateral hearing loss. The RO should then assist the Veteran in obtaining any additional evidence properly identified following the current procedures set forth in 38 C.F.R. § 3.159. 2. Advise the Veteran and his representative that it is ultimately the Veteran's responsibility to obtain (from his employer) and submit (to VA) his employment records, particularly those relating to loss time or sick leave as well as those relating to the facts and circumstances of separation, termination or retirement; that he should submit evidence documenting any attempts to obtain employment, to include the number and status of job applications filed, to include any rejection letters of employment; and that he should submit evidence (such as, pay stubs, W2 Forms, tax return, etc.) documenting marginal employment, if any (past or prospective) relating to jobs secured and followed that resulted in earned annual income that does (or did) not exceed the poverty threshold for one person. 3. Thereafter, review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated, including a VA examination if it is deemed to be warranted in this case. Then, adjudicate the issue of entitlement to a TDIU rating due to the service-connected bilateral hearing loss, to include consideration of whether the requirements for referral to the Director of the Compensation and Pension Service have been invoked under 38 C.F.R. § 4.16(b). If the decision on this matter is adverse to the Veteran, then a supplemental statement of the case should be furnished to the Veteran and his representative after according the requisite time period to respond. This matter should be returned to the Board for appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs