Citation Nr: 1439167 Decision Date: 09/03/14 Archive Date: 09/09/14 DOCKET NO. 14-20 315 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an initial compensable evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1956 to December 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which granted the Veteran's claim for service connection for bilateral hearing loss and assigned a noncompensable evaluation, effective March 24, 2011. 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. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. A preponderance of the evidence demonstrates Level II hearing impairment of the right ear and Level IV hearing impairment of the left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.85, Diagnostic Code 6100 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must inform the Veteran about (1) the information and evidence not of record that is necessary to substantiate the claim; (2) the information and evidence that VA will seek to provide; and (3) the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a current disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 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 the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In cases such as this, where service connection has been granted and an initial disability rating and effective date have been assigned, the claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, because the notice that was provided before service connection for bilateral hearing loss was granted was legally sufficient, VA's duty to notify has been satisfied. The duty to assist the Veteran has also been satisfied in this case. All available relevant evidence pertinent to the issue on appeal is in the claims file, including the Veteran's VA treatment records, private audiological records and the Veteran's statements in support of his claim. The Veteran has had the opportunity to present evidence and argument in support of his claim, and nothing reflects that he has indicated the existence of any relevant evidence that has not been obtained or requested. In addition, the Veteran was afforded VA audiological examinations with respect to his claim. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the April 2014 VA examination report is adequate. The examiner reviewed the claims file, solicited a history from the Veteran, and conducted an examination. The audiology examiner provided the medical information necessary to address the rating criteria at issue in this case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, the Board concludes that the April 2014 VA audiology examination report describes the functional effects of the Veteran's bilateral hearing loss disability, in that it notes that the Veteran described sounds as being "low", having to look at people when they talk, distortion of certain sounds or an inability to hear them at all, and instances when working as a letter carrier when he almost got bitten by dogs because he did not hear them coming. In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court noted that even if an audiologist's description of the functional effects of the appellant's hearing disability was somehow defective, the appellant bears the burden of demonstrating any prejudice caused by a deficiency in the examination. There has been no assertion of any such deficiency. Consequently, the VA examination is found to be adequate. Neither the Veteran nor his representative has alleged that the Veteran's bilateral hearing loss disability has increased in severity since the April 2014 VA examination. Therefore, a new VA examination is not required on this basis. See 38 C.F.R. § 3.159 (2013); see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (finding an examination necessary where a Veteran alleged worsening). The April 2014 VA examination report is thorough and provided findings pertinent to the rating criteria. Thus, there is adequate medical evidence of record to make a determination in this case, and additional development by way of additional examinations would be redundant and unnecessary. See 38 C.F.R. §§ 3.326, 3.327; Green v. Derwinski, 1 Vet. App. 121 (1991). Therefore, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Increased Rating for Bilateral Hearing Loss The Veteran contends that he is entitled to an initial compensable disability rating for bilateral hearing loss. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to active service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2014). 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 for that rating. 38 C.F.R. § 4.7 (2014). 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 (2014). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a veteran appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection is most probative of the degree of disability existing at the time that the initial rating was assigned, and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See 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, as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. The rating schedule 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 puretone audiometry test. The horizontal rows in Table VI (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 puretone audiometry 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 puretone decibel loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the horizontal row appropriate for the numeric designation for the ear having the better hearing acuity and the appropriate vertical column to the numeric designation level for the ear having the poorer hearing acuity. See 38 C.F.R. § 4.85(e) (2014). The provisions of 38 C.F.R. § 4.86(a) provide that when the puretone 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. The provisions of 38 C.F.R. § 4.86(b) provide that when the puretone 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 result provides the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. Service connection for bilateral hearing loss was granted in a November 2011rating decision. A noncompensable evaluation was awarded, effective March 24, 2011. The Veteran has been provided with a number of audiograms, both by VA and private audiologists. Their findings are enumerated below. Puretone thresholds from a November 2010 private audiogram were as follows: HERTZ 500 1000 2000 3000 4000 Average (1000-4000) RIGHT 25 25 45 45 56 42.75 LEFT 20 34 60 65 60 54.75 On the basis of the numbers shown above, the Veteran's puretone threshold average for the right ear was approximately 43 decibels. His puretone threshold average for the left ear was approximately 55 decibels. His speech recognition ability was noted as 84 percent in the right ear and 84 percent in the left ear. These scores correlate to auditory acuity level II on the right and level II on the left, under Table VI of 38 C.F.R. § 4.85. A noncompensable rating is warranted under Diagnostic Code 6100 when these auditory acuity levels are entered into Table VII of 38 C.F.R. § 4.85. Measured puretone thresholds from a September 2011 VA audiological examination were as follows: HERTZ 500 1000 2000 3000 4000 Average (1000-4000) RIGHT 35 25 45 50 65 46.25 LEFT 30 35 60 65 70 57.5 On the basis of these numbers, the Veteran's puretone threshold average for the right ear was approximately 47 decibels. His puretone threshold average for the left ear was 57.5 decibels. His speech recognition ability was noted as 88 percent in the right ear and 80 percent in the left ear using the Maryland CNC speech recognition test. These scores correlate to auditory acuity level II on the right and level IV on the left, under Table VI of 38 C.F.R. § 4.85. A noncompensable rating is warranted under Diagnostic Code 6100 when these auditory acuity levels are entered into Table VII of 38 C.F.R. § 4.85. A June 2012 VA audiogram showed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 Average (1000-4000) RIGHT 35 25 45 55 55 45 LEFT 30 35 65 65 65 57.5 On the basis of the numbers shown above, the Veteran's puretone threshold average for the right ear was 45 decibels. His puretone threshold average for the left ear was 57.5 decibels. His speech recognition ability was noted as 80 percent in the right ear and 92 percent in the left ear. These scores correlate to auditory acuity level III on the right and level IV on the left, under Table VI of 38 C.F.R. § 4.85. A 10 percent evaluation is warranted under Diagnostic Code 6100 when these auditory acuity levels are entered into Table VII of 38 C.F.R. § 4.85. An August 2013 private audiogram showed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 Average (1000-4000) RIGHT 30 30 50 60 60 50 LEFT 30 40 60 70 60 57.5 On the basis of the numbers shown above, the Veteran's puretone threshold average for the right ear was 50 decibels. His puretone threshold average for the left ear was 57.5 decibels. His speech recognition ability was noted as 88 percent in the right ear and 84 percent in the left ear. These scores correlate to auditory acuity level II on the right and level III on the left, under Table VI of 38 C.F.R. § 4.85. A noncompensable rating is warranted under Diagnostic Code 6100 when these auditory acuity levels are entered into Table VII of 38 C.F.R. § 4.85. Finally, an April 2014 VA audiological examination included findings showing the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 Average (1000-4000) RIGHT 45 45 50 65 70 58 LEFT 45 45 65 75 75 65 On the basis of the numbers shown above, the Veteran's puretone threshold average for the right ear was approximately 58 decibels. His puretone threshold average for the left ear 65 decibels. His speech recognition ability was noted as 94 percent in the right ear and 84 percent in the left ear using the Maryland CNC speech recognition test. These scores correlate to auditory acuity level II on the right and level III on the left, under Table VI of 38 C.F.R. § 4.85. A noncompensable rating is warranted under Diagnostic Code 6100 when these auditory acuity levels are entered into Table VII of 38 C.F.R. § 4.85. Consideration has also been given to 38 C.F.R. § 4.86 for exceptional patterns of hearing impairment, but this section is not applicable, as puretone threshold levels were never shown to be 55 dB or higher at each of the four frequencies, i.e., at 1000, 2000, 3000 and 4000 Hertz, nor were they 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(a) and (b). In conclusion, an initial compensable rating for the Veteran's bilateral hearing loss is not found to be warranted. When taken all together, the majority of the findings demonstrate, at worst, a Level II hearing impairment of the right ear and Level IV hearing impairment of the left ear. Although the Board notes that the June 2012 audiological evaluation demonstrated Level III hearing in the right ear, the reliability of the speech recognition score in this instance is somewhat suspect, as logic dictates that the ear with objectively worse hearing acuity (the left) would be expected to have a lower speech recognition score than the ear with objectively better hearing acuity. Although speech recognition is noted as 92 for the left and 80 for the right, the Board finds it more likely these numbers have been transposed, given the findings in all the other audiological tests of equal or better speech recognition in the right ear as opposed to the left. Therefore, the weight of the evidence supports a noncompensable rating under Diagnostic Code 6100. The Veteran thus does not meet the criteria for an initial compensable rating for bilateral hearing loss. As the preponderance of the evidence is against the claim for an initial compensable evaluation for bilateral hearing loss, the benefit of the doubt rule is not applicable, and the claim must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's bilateral hearing loss is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2014). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. As discussed above, there are higher ratings available under the applicable diagnostic code, but the Veteran's bilateral hearing loss disability is not productive of such manifestations. There is no suggestion in the medical evidence that the rating criteria do not reasonably describe the Veteran's disability level and symptomatology. There has been no demonstration of an exceptional or unusual disability picture, to include marked interference with employment or frequent periods of hospitalization, so as to render impractical the application of the regular schedular standards. Although the Veteran is currently unemployed, such unemployment has not been noted to be because of his hearing loss disability. As such, it cannot be said that the available schedular evaluation for the Veteran's bilateral hearing loss disability is inadequate. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected bilateral hearing loss under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). The Board also notes that the Veteran is additionally service-connected for tinnitus. Under Johnson v. McDonald, 2013-7104, 2014 WL 3844196 (Fed. Cir. Aug. 6, 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, the evidence does not demonstrate, and the Veteran has not asserted, that there are additional symptoms or disability associated with his service-connected conditions that have not been adequately covered by the rating criteria for each individual condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for disability that can be attributed only to the combined effect of multiple conditions. Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that his bilateral hearing loss renders him totally unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised in connection with his claim for entitlement to an initial compensable rating for bilateral hearing loss. ORDER An initial compensable evaluation for bilateral hearing loss is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs