Citation Nr: 1419983 Decision Date: 05/05/14 Archive Date: 05/16/14 DOCKET NO. 09-39 804 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE 1. Entitlement to an initial compensable rating for bilateral hearing loss prior to August 31, 2013. 2. Entitlement to an initial compensable rating for bilateral hearing loss from August 31, 2013. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from April 1967 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran and his spouse testified in May 2011 before the undersigned Acting Veterans Law Judge at a Travel Board hearing sitting at the RO; a transcript is of record. The Veteran's appeal was remanded by the Board in September 2011. Review of the record reveals that there has been substantial compliance with the directives of that remand, such that an additional remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998). Subsequent to recertification of the Veteran's appeal to the Board following the September 2011 remand, additional pertinent evidence was associated with the claims file. VA contacted the Veteran in March 2014 and asked if he wished to waive Agency of Original Review (AOJ) review of this evidence. The Veteran notified VA in April 2014 that he waived his right to AOJ review. Accordingly, appellate adjudication may proceed. In the present decision, the Board is granting a higher rating for bilateral hearing loss beginning August 31, 2013. In the interest of clarity, the issues have been recharacterized as listed above. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a request for entitlement to a total disability rating for compensation on the basis of individual unemployability (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. However, consideration of whether a TDIU is warranted requires cogent evidence of unemployability in the record. See Rice, 22 Vet. App. at 447, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). In the instant case, the holding of Rice is inapplicable since the Veteran's testimony from the May 2011 hearing shows that he was employed as a mechanic on printing presses. While the record shows that there may be some interference with this job due to service-connected disabilities, the record does not establish unemployment or suggest unemployability. Accordingly, consideration of a TDIU is not required. FINDINGS OF FACT 1. Prior to August 31, 2013, right ear hearing loss was manifested by no worse than Level III impairment, and left ear hearing loss was manifested by no worse than Level I impairment. 2. Beginning August 31, 2013, right ear hearing loss was manifested by no worse than Level VII impairment, and left ear hearing loss was manifested by no worse than Level III impairment. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for bilateral hearing loss prior to August 31, 2013 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2013). 2. The criteria for a 20 percent rating, but no greater, for bilateral hearing loss have been met beginning August 31, 2013. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist the Veteran in substantiating his claims 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, 3.326(a) (2013). Regarding VA's duty to notify, the claim for a higher rating for bilateral hearing loss arose from disagreement with the initial evaluation assigned following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records, pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service records and private medical records are in the claims file. The Veteran has not indicated there are any additional records that VA should seek to obtain on his behalf. The Veteran was provided with audiological examinations in July 2008, March 2009, September 2011, and August 2013. The examination reports are adequate for evaluation purposes because the examiners conducted clinical evaluations, reviewed the Veteran's medical history, and described the hearing loss in sufficient detail so that the Board's evaluation is an informed determination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Further, in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the United States Court of Appeals for Veterans Claims (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. The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. Id. In this case, examiners addressed the effect of the Veteran's hearing loss on his daily activities and his employment. Thus, the Board finds that the examinations were adequate. See also Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012); Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). The Veteran has been afforded a hearing before the undersigned Acting Veterans Law Judge (AVLJ) in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c) (2) (2013) requires that the Veterans Law Judge (VLJ) or AVLJ who chairs 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 AVLJ noted the basis of the prior determination and noted the elements that were lacking to substantiate the claim for an increased evaluation. In addition, the AVLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c) (2) nor has identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for an increased evaluation for bilateral hearing loss. As such, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. § 3.103(c) (2) and that the Board can adjudicate the claim based on the current record. Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged ratings" is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In cases for which the evaluation of hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Hearing loss ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with average hearing thresholds determined by pure tone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 cycles per second. "Pure tone threshold average" is the sum of the pure tone 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 VIa. 38 C.F.R. § 4.85, DC 6100. The regulations also provide that in cases of exceptional hearing loss, i.e. when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the Roman numeral designation will be determined for hearing impairment, separately, from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86. A Roman numeral designation will also be determined from either Table VI or Table VIa, whichever results in the higher numeral, when the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. That numeral will then be elevated to the next higher Roman numeral. At the July 2008 VA examination, speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 in the left ear. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 55 65 85 LEFT 25 20 30 55 75 In September 2008, September 2009, and December 2010, the Veteran's hearing was tested by his employer. Unfortunately, the evaluations from the Veteran's employers cannot be used to evaluate the Veteran's hearing loss because the hearing loss in the right ear at 4000 Hz and speech discrimination were not measured. See 38 C.F.R. §§ 3.385, 4.85. HERTZ 500 1000 2000 3000 4000 RIGHT 35 45 60 70 n/a LEFT 25 25 40 65 85 The Veteran wrote in a February 2009 statement that over the years he had lost most of his hearing. He had trouble hearing what was said to him at work, and his employer thought he did not listen to instructions when in fact he could not hear them. In addition, the Veteran reported being unable to hear warning sounds such as smoke and fire alarms. The Veteran had another VA examination in March 2009 at which he reported difficulty understanding conversation due to his service-connected tinnitus. Speech audiometry revealed speech recognition ability of 90 percent in the right ear and of 94 in the left ear; pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 50 55 65 90 LEFT 25 25 30 65 85 The examiner felt that the hearing loss may result in some difficulties understanding speech in difficult listening situations, such as with background noise, when he could not see the speaker's face, or on the telephone. With amplification and reasonable accommodations the hearing loss and tinnitus should not significantly affect vocational potential or limit participation in most work activities. In an October 2009 statement, the Veteran indicated that he could not understand what was being said to him and that he did not speak correctly because he did not hear correctly. At the September 2011 VA examination, speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 in the left ear; pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 45 55 65 85 LEFT 20 20 30 60 85 A VA physician reviewed the claims folder in December 2011 and wrote that the September 2011 audiological evaluation appeared to be valid. The physician felt that the Veteran's current hearing loss and tinnitus would not affect his occupational functioning and daily activities. Applying the results of the VA examinations to Table VI results in numeral ratings of Level II hearing on the right for the July 2008 examination, Level III hearing on the right for the March 2009 examination, and Level II hearing on the right for the September 2011 examination. It also results in a numerical rating of Level I for the left ear at all examinations. Applying these results to Table VII results in a noncompensable rating no matter which set of results is used. Further, none of the VA examination results reflect a pattern of exceptional hearing loss under 38 C.F.R. § 4.86. However, at the August 2013 VA examination, speech audiometry revealed speech recognition ability of 64 percent in the right ear and of 84 in the left ear; pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 60 65 70 95 LEFT 35 30 55 70 95 These results correspond to Level VII hearing on the right and Level III hearing on the left pursuant to Table VI. [Although the clinical findings with respect to the right ear demonstrate a pattern of exceptional hearing loss under 38 C.F.R. § 4.86, application of the pure tone decibel loss and speech recognition ability percentage to Table VIa only results in Level VI hearing acuity; as such, the results of using Table VI are more favorable to the Veteran.] Applying the results from this examination to Table VII results in a 20 percent rating beginning the date of the examination, August 31, 2013. Although the Board does not discount the difficulties the Veteran has with his auditory acuity or his assertions as to its severity, it has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Thus, the assignment of a ratings greater than those indicated above on a schedular basis are not warranted. A review of the record also fails to show that a referral for extraschedular consideration is warranted. 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). In this case, the Board finds that the rating criteria contemplate the Veteran's hearing loss disability for entire duration of this appeal. The Veteran's hearing loss disability is productive of decreased hearing acuity, and this manifestation is contemplated in the respective applicable rating criteria. In Martinak, the Court noted that unlike the rating schedule for hearing loss, the extraschedular provisions do not rely exclusively on objective test results to determine whether referral for an extraschedular rating was warranted. The Court 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. Id. at 455. As discussed above, VA examination reports contain detailed descriptions of the Veteran's subjective complaints and impairments in functioning due to hearing loss. While this evidence has been considered in light of Martinak and the provisions of 38 C.F.R. § 3.321(b) (1), the Veteran has not described functional effects that are "exceptional" or not otherwise contemplated by the assigned evaluations. His description of hearing difficulties is consistent with the degree of disability addressed by such ratings. Referral for an extraschedular rating is not warranted. The preponderance of the evidence is against the claim. There is no doubt to be resolved, and higher ratings than those assigned by this decision are not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an initial compensable evaluation for bilateral hearing loss prior to August 31, 2013 is denied. Entitlement to an initial evaluation of 20 percent for bilateral hearing loss from August 31, 2013 is granted, subject to the applicable regulations concerning the payment of monetary benefits. ____________________________________________ J. MACIEROWSKI KIRBY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs