Citation Nr: 1422015 Decision Date: 05/15/14 Archive Date: 05/29/14 DOCKET NO. 13-27 389 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a compensable disability rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J.R. Bryant INTRODUCTION The Veteran served on active duty from May 1945 to August 1946, from September 1947 to January 1954, and from August 1964 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the RO in Guaynabo, Puerto Rico. [Due to the current location of the Veteran's residence, jurisdiction of his appeal is now with the RO in Cleveland, Ohio]. During the pendency of the appeal, the RO granted the additional issue of entitlement to service connection for tinnitus. See Rating Decision dated September 6, 2013. The Veteran has not initiated an appeal with respect to the disability rating or effective date assigned and has provided no additional argument on this issue. Thus, it is not currently before the Board in appellate status, and consideration herein is limited to only the hearing loss issue listed on the first page of this decision. The Board has reviewed the Veteran's physical claims file and the record maintained in the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) to ensure complete consideration of all evidence. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. During the course of this appeal audiological testing has resulted in unreliable and inconsistent threshold responses by the Veteran. 2. As a result there is no competent medical evidence demonstrating the Veteran is entitled to a compensable disability rating for his bilateral hearing loss. CONCLUSION OF LAW The criteria for a compensable disability rating for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code (DC) 6100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b) ; Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in October 2011 of the criteria for establishing an increased rating, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). He also was notified of how VA determines disability ratings and effective dates if increased entitlement is awarded. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in April 2012. Nothing more was required. VA has also satisfied its duty to assist the Veteran in the development of his claim. In-service treatment records and pertinent post-service records have been obtained and associated with his claims folder, or are otherwise viewable on the Virtual VA electronic database. The Veteran has availed himself of the opportunity to submit relevant documents and argument in support of his claims, including personal statements and representative argument. The Board finds that there is no additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. Green v. Derwinski, 1 Vet. App. 121 (1991). Here, the Veteran was afforded a VA examination in October 2011. To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). See also Martinak v. Nicholson, 21 Vet. App. 447, 454 (2007) (A VA audiology examiner is required to fully describe the functional effects caused by a hearing disability). The audiologist who conducted the October 2011 VA examination, included a pure tone audiometry test in accordance with 38 C.F.R. § 4.85. However, as explained below, the test results obtained at that time were noted to be invalid. Such invalid results were due to the nature of the responses given by the Veteran. The Veteran was scheduled for another VA audiology examination in March 2012, but failed to report as he was out of the country at the time. See Notice of Disagreement received in July 2012. He was then scheduled for a third VA audiology examination in August 2013, but called the VA Medical Center and cancelled the examination. The Veteran was later contacted to ascertain his willingness/ability to report for a VA examination. See VA Form 27-0820 dated in August 2013. In September 2013, he responded that he did not want to report to another VA examination. He was informed that a decision would be made based on the evidence of record. See VA Form 27-0820 dated in September 2013. The Veteran, through his representative, now argues that when taking an audiometric test he has issues distinguishing between the tones from the test and the sounds caused by his tinnitus. He believes that this is the reason the examiners invalidated the audiometric tests that he has provided. See Informal Hearing Presentation dated April 28, 2014. As was noted in Kowalski v. Nicholson, 19 Vet. App. 171 (2005), the Veteran is "expected to cooperate in the efforts to adjudicate his claim." In this case he has not done so. In light of the Veteran's disinclination to fully cooperate with the process, which is described in better detail below, remanding the matter to schedule an additional VA examination would serve no useful purpose and is not required under the law. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Given the RO's actions and the Veteran's choice not to submit to VA examination, the Board finds that VA has no remaining duty under the VCAA with regard to a medical examination in conjunction with the hearing loss claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, supra. Law and Analysis The Veteran is seeking a compensable disability rating for his service-connected bilateral hearing loss. Disability evaluations are determined by comparing a veteran's present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). Although a review of the recorded history of a disability is necessary in order to make an accurate evaluation, see 38 C.F.R. §§ 4.2, 4.41, the regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. See Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). However, where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119 (1999). The United States Court of Appeals for Veterans Claims (Court) has also held that staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Hearing loss is evaluated under DC 6100, which sets out the criteria for evaluating hearing impairment using puretone threshold averages and speech discrimination scores. Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85. See Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Audiometric results are matched on Table VI to find the numeric designation. Then, the designations are matched with Table VII to find the percentage evaluation to be assigned for the hearing impairment. To evaluate the degree of disability for service-connected hearing loss, the Rating Schedule establishes 11 auditory acuity levels, designated from Level I for essentially normal acuity, through Level XI for profound deafness. 38 C.F.R. § 4.85. The provisions of section 4.86 address exceptional patterns of hearing loss which are identified when each of the puretone thresholds at 1000, 2000, 3000, and 4000 hertz (Hz) is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz. 38 C.F.R. § 4.86. Applying the regulations to the facts in the case, the Board finds that the criteria for a compensable rating are not met. The record includes an uninterpreted graphic representation of private audiometric data from August 2011. The results appear to reflect pure tone averages of 53 decibels in the right ear and 65 decibels in the left ear. Speech audiometry testing using live voice revealed speech recognition ability of 88 percent in the right ear and 76 percent in the left ear. The results of the audiogram were summarized as moderate to severe sensorineural hearing loss in both ears. However, because the numerical values for pure tone results at the frequency for 3000 Hertz were not reported and it is not clear that the examiner derived speech discrimination results using the Maryland CNC Word List, the report may not be used determine the appropriate rating under the schedular criteria for hearing loss. 38 C.F.R. § 4.85(a). As noted above, the Veteran underwent a VA examination in October 2011. However, the audiologist concluded that the Veteran's puretone threshold results were invalid and recommended that they not be used for rating purposes. Specifically, she noted that the Veteran's admitted pure-tone thresholds were suggestive of a mild to moderately severe sensorineural hearing loss. She also noted test reliability was considered poor. She explained that the Veteran's first responses were elevated and not in agreement with his first speech reception thresholds. The Veteran was reinstructed again, but his second responses did not show any improvement and were still not in agreement with the first or second speech reception thresholds. He was reinstructed a third and final time and while these responses were somewhat better than the other responses, inconsistences were still noted. The audiologist further explained that inconsistences between pure tones and speech reception thresholds were often characteristic of someone malingering. She then compared the October 2011 results with previous testing obtained in August 2011, noting that the current results showed a worsening of hearing, which seemed highly unlikely in just 2 months time. In assessing the evidence, the Board observes that the evaluation reports do not contain the necessary clinical findings to assess the severity of the Veteran's bilateral hearing loss. In reaching this conclusion, the Board has not overlooked the Veteran's primary contention that his hearing loss is debilitating at a far greater percentage than 0 percent or VA's obligation to resolve all reasonable doubt in the his favor. Although there is no reason to doubt his difficulties, his hearing loss disability is evaluated on the objective findings demonstrated during audiological examination. The fact that his hearing acuity is less than optimal does not, by itself, establish entitlement to higher disability ratings. To the contrary, it is clear from the Rating Schedule that higher ratings can be awarded only when loss of hearing has reached a specified measurable level. That level of disability has not been demonstrated in the present case. The "assignment 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. Lendenmann, supra. It is not the Board's intent, in its discussion of the merits of this case, to in any way trivialize the severity of the Veteran's complaints or the sincerity of his beliefs concerning the gravity of his symptoms. Inasmuch as he is not competent to identify a specific level of disability as determined by the appropriate diagnostic codes, there is no means to increase the disability rating based on the medical evidence currently of record, especially because no other codes of the rating schedule provide a basis for the application of a higher rating. The criteria for the assignment of compensable disability rating are not met. Hart, supra. The current level of disability shown is encompassed by the current rating assigned, and, with due consideration to the provisions of 38 C.F.R. § 4.7, a higher evaluation is not warranted for this disability for any portion of the time period under consideration. The Board must also determine whether the schedular rating is inadequate, requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology (2008). If there is an exceptional or unusual disability picture, the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of an award of an extraschedular rating. Otherwise, the schedular rating is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. Here, the schedular ratings are adequate. Evaluations in excess of those assigned are provided for certain manifestations of the service-connected bilateral hearing loss, but the medical evidence reflects that those manifestations are not present here. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. Finally, the Board recognizes that the Court has held that a request for a 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. There must be cogent evidence of unemployability in the record. Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). However, the holding of Rice is inapplicable here because the evidence of record does not illustrate that the Veteran's service-connected hearing loss prevents him from obtaining and maintaining gainful employment. Thus, any further consideration of the Veterans claim under Rice is not warranted at this time. A preponderance of the evidence is against the claim adjudicated herein. There is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b) (West 2002). ORDER A compensable disability rating for bilateral hearing loss is denied. ____________________________________________ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs