Citation Nr: 1511815 Decision Date: 03/19/15 Archive Date: 04/01/15 DOCKET NO. 05-12 187 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an initial compensable disability rating for bilateral hearing loss prior to June 18, 2009, and to a disability rating in excess of 10 percent thereafter. 2. Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from August 1972 to July 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Jurisdiction over the Veteran's claims folder was subsequently transferred to the RO in Chicago, Illinois. This appeal was remanded in December 2007, July 2010, November 2013, and August 2014 for further development. In April 2014, a travel board hearing was held before the undersigned Veterans Law Judge (VLJ). This is a paperless appeal and the Veterans Benefits Management System (VBMS) and Virtual VA folders have been reviewed. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. For the period prior to June 18, 2009, the evidence of record is inadequate for rating purposes and there are no objective findings (audiometry and speech discrimination testing pursuant to the Maryland CNC) sufficient to support a compensable rating for bilateral hearing loss. 2. For the period from June 18, 2009, objective findings correspond to no more than a 10 percent rating for bilateral hearing loss. CONCLUSIONS OF LAW 1. For the period prior to June 18, 2009, the criteria for an initial compensable rating for bilateral hearing loss are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86 (2014). 2. For the period from June 18, 2009, the criteria for a rating greater than 10 percent for bilateral hearing loss are not met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. § 5103 and 5103A (West 2014) have been met. By correspondence dated in December 2002 and September 2004, VA notified the Veteran of the information and evidence needed to substantiate and complete a claim. Correspondence dated in March 2006 notified the Veteran as to how VA assigns disability ratings and effective dates. The appeal for a higher rating for bilateral hearing loss is a downstream issue in that it arose following the initial grant of service connection and additional notice is not required. Notwithstanding, the Veteran has been advised of applicable rating criteria throughout the appeal period and additional notice regarding a claim for increase was sent in September 2014. The claim was most recently readjudicated in the January 2015 supplemental statement of the case. VA has also satisfied the duty to assist. The claims folder contains service treatment records, Department of Corrections medical records, Social Security Administration (SSA) records, and VA medical center records. The Veteran was incarcerated during a significant portion of the appeal period. The Board acknowledges that VA's duty to assist incarcerated veterans requires it to tailor its assistance to meet the peculiar circumstances of confinement, as such individuals are entitled to the same care and consideration given to their fellow veterans. Bolton v. Brown, 8 Vet. App. 185 (1995). A January 2004 VA examination report notes that the correctional facility was contacted to set up an examination, but stated they will not transport the prisoner for the audiogram. When the examiner presented at the correctional facility he inquired as to any audiology facilities within the prison and there were none. In reviewing the record, VA was simply unable to obtain an examination for VA purposes prior to June 18, 1999. VA sought clarification to determine if audiograms obtained during incarceration used the Maryland CNC test. VA also clarified whether this test was used in recent outpatient testing. See Savage v. Shinseki, 24 Vet. App. 259 (2011). The Veteran underwent VA examinations in June 2009, October 2011, and June 2014. These examinations include objective findings necessary for rating purposes and collectively discuss the functional effects due to the Veteran's hearing impairment. See 38 C.F.R. § 4.85, Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Additional examination is not needed. The Veteran provided testimony at a Board hearing and the VLJ's actions supplemented the VCAA and complied with any hearing related duties. The Board notes that the increased evaluation issue for hearing loss has been remanded on multiple occasions for further development. In reviewing the record, the Board finds substantial compliance with the remand directives as concerns this issue. See Dyment v. West, 13 Vet. App. 141 (1999). In a January 2015 statement, the Veteran argued that the June 2014 VA audiometric examination was not considered. The Board acknowledges that this examination is not listed in the evidence section of the January 2015 supplemental statement of the case. However, a review of the reasons and bases section shows that the June 2014 audiometric examination was considered as concerns the hearing loss issue. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. See 38 C.F.R. § 3.159. Analysis In February 2004, the RO granted service connection for bilateral hearing loss and assigned a noncompensable rating from August 9, 2002. The Veteran disagreed with the decision and perfected this appeal. In June 2009, the rating was increased to 10 percent effective June 18, 1999, resulting in a staged rating. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of a Veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2 (2014); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2014). If there is a question as to which evaluation to apply to a Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2014). Where an increase in the disability rating is at issue, the present level of a claimant's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings, however, are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of defective hearing range from noncompensable to 100 percent. The basic method of rating hearing loss involves audiological test results of organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. Puretone threshold average is the sum of puretone thresholds at 1000, 2000, 3000, and 4000 Hertz divided by four. To evaluate the degree of disability of service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. See 38 C.F.R. § 4.85, Diagnostic Code 6100. The current rating criteria include an alternate method of rating exceptional patterns of hearing as defined in 38 C.F.R. § 4.86 (puretone threshold of 55 decibels or more at 1000, 2000, 3000, and 4000 Hertz ; puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz). For the period prior to June 18, 2009 The record contains various audiograms dated between 1981 and 2004. Service connection was established effective August 9, 2002. Accordingly, the Board will focus on the evidence from that date forward. A December 2003 VA examination notes the Veteran's complaints of decreased hearing in both ears with the right ear being much more affected than the left. He stated that discrimination was poor in the right ear. The examiner noted a history of unilateral sensorineural hearing loss (low mid and high frequency) without tone or acoustic reflex delay. Physical examination revealed that the Veteran leaned forward and used his left ear to hear with. Diagnosis included decreased auditory acuity, right ear greater than left. The examiner further noted that a current audiogram was not available secondary to the Veteran being incarcerated and not allowed to leave the facility. The Veteran was seen at a private otolaryngology clinic in July 2004. The examiner stated that the audiogram showed left mild-to-moderate sensorineural hearing loss with good word recognition and on the right side moderate-to-severe sensorineural hearing loss with fair word recognition. The Board was unable to interpret the actual audiometric findings and in January 2014, a VA audiologist reviewed the July 2004 audiogram and remarked as follows: The report did not identify the speech discrimination word lists used, in fact the box labeled "Test Materials" was empty. The following information is provided: for the left ear there were two sets of results obtained; one set of results was obtained using headphones and one set of results was obtained using insert phones. The results obtained were significantly different. For inserts the following thresholds were obtained: 40 dBHL @ 250Hz, 45 dBHL @ 500Hz, 40 dBHL at 1000Hz, 50 dBHL @ 2000Hz, 60 dBHL @ 4000Hz, and 70 dBHL @ 8000 Hz. For headphones in the left ear, the following thresholds were obtained: 55 dBHL @ 250Hz, 50 dBHL @ 500Hz, 45 dBHL @ 1000Hz, 60 dBHL @ 2000Hz, 65 dBHL@ 3000 Hz, 80 dBHL @ 4000Hz, and 75 dBHL @ 8000 Hz. The following thresholds were obtained using headphones in the right ear: 60 dBHL @ 250Hz, 65 dBHL @ 500Hz, 70 dBHL @ 1000Hz, 65 dBHL @ 2000Hz, 75 dBHL @ 3000Hz, 80 dBHL @ 4000Hz, and 85 dBHL @ 8000Hz. It is unclear whether the reliability rating was good or fair since it appears both "good" and "fair" were circled. It is unclear as to why two sets of pure tone thresholds were obtained in the left ear. Sometimes there is a concern of collapsing ear canals while using headphones and sometimes repeat presentations are done to establish reliability. Please note that this is only speculation on this writer's part since as there were no pertinent notations on the audiogram indicating why. In September 2004, the Veteran submitted lay statements from two individuals who attest to his hearing difficulties. In reviewing the evidence prior to June 18, 2009, there is no basis for assigning a compensable rating. That is, the record does not contain objective findings during this period that are adequate for rating purposes. See 38 C.F.R. §4.85. While the July 2004 audiogram demonstrated sensorineural hearing loss and included findings necessary to determine the puretone threshold average, there is no indication that word recognition testing was accomplished using the Maryland CNC. The Board acknowledges the Veteran's contentions and the lay assertions of record and notes that he is competent to report his hearing difficulties. See Charles v. Principi, 16 Vet. App. 370 (2002). Notwithstanding, a compensable rating is not warranted based solely on lay statements. See Lendenmann. For the period from June 18, 2009 The Veteran underwent a VA audiology examination on June 18, 2009. He reported his situations of greatest difficulty were trying to understand speech in noise, understanding actor's speech on television, and understanding on the telephone. On physical examination, puretone thresholds were as follows: HERTZ 1000 2000 3000 4000 RIGHT 65 70 75 80 LEFT 50 60 65 75 The average decibel loss was calculated as 72.50 in the right ear and 62.50 in the left ear. Speech recognition scores pursuant to the Maryland CNC were 94 percent in the right ear and 90 percent in the left ear. Considering the results of the June 2009 examination under Table VI, the Veteran had level II hearing on the right and level III hearing on the left. The right ear showed an exceptional pattern of hearing impairment (55 decibels or more from 1000 to 4000 Hertz). Under Table VIa, a Roman numeral VI is assigned for the right ear. Level VI hearing in the right ear and level III hearing in the left ear correspond to a 10 percent evaluation. The Veteran underwent a VA audiology examination in October 2011. He reported that he missed conversation in all listening environments and had difficulty hearing over the phone. On physical examination, puretone thresholds were as follows: HERTZ 1000 2000 3000 4000 RIGHT 85 80 80 80 LEFT 35 40 40 65 The average decibel loss was calculated as 81 in the right ear and 45 in the left ear. Speech recognition scores pursuant to the Maryland CNC were 18 percent in the right ear and 92 percent in the left ear. Considering the results of the October 2011 examination under Table VI, the Veteran had level XI hearing on the right and level I hearing on the left. The right ear showed an exceptional pattern of hearing impairment (55 decibels or more from 1000 to 4000 Hertz). Under Table VIa, a Roman numeral VII is assigned for the right ear. Level XI hearing in the right ear and level I hearing in the left ear correspond to a 10 percent evaluation. The Veteran most recently underwent a VA audiology examination on June 14, 2014. He reported that he had to face the speaker in a conversation and he missed conversation. He also misunderstood speech in all listening environments. On physical examination, puretone thresholds were as follows: HERTZ 1000 2000 3000 4000 RIGHT 80 70 70 70 LEFT 25 25 30 60 The average decibel loss was calculated as 73 in the right ear and 35 in the left ear. Speech recognition scores pursuant to the Maryland CNC were 12 percent in the right ear and 98 percent in the left ear. Considering the results of the June 2014 examination under Table VI, the Veteran had level XI hearing on the right and level I hearing on the left. The right ear showed an exceptional pattern of hearing impairment (55 decibels or more from 1000 to 4000 Hertz). Under Table VIa, a Roman numeral VI is assigned for the right ear. Level XI hearing in the right ear and level I hearing in the left ear correspond to a 10 percent evaluation. Review of VA outpatient records shows that the Veteran was seen for an audiology consult in February 2011 and was issued hearing aids in December 2011. He also underwent audiology consults in January 2013 and on June 10, 2014. To the extent these visits included audiometry and speech recognition testing, the evaluations were for treatment purposes, not compensation purposes, and there is no indication that the Maryland CNC test was used. Thus, the findings are not adequate for rating purposes. See 38 C.F.R. § 4.85. Indeed, in October 2014, the VA audiologist who evaluated the Veteran on June 10, 2014 stated that she saw him for treatment purposes only and therefore, the W-22 test was used and not the Maryland CNC. Under a mechanical application of the rating schedule, a higher schedular evaluation is simply not warranted. As demonstrated, the objective findings from June 18, 2009 to present correspond to a 10 percent rating. Again, the Board acknowledges the Veteran's statements as to significant or increased hearing loss disability. His unsupported lay assertions are insufficient to outweigh the objective findings of record. Further, in addition to the 10 percent rating for hearing loss, the Veteran is assigned a 30 percent rating from August 9, 2002 under Diagnostic Code 6205 for Meniere's disease with tinnitus. While the Board will not disturb the ratings assigned, it should be noted that the evaluation for hearing impairment is not to be combined with an evaluation under Diagnostic Code 6205. See 38 C.F.R. § 4.87, Diagnostic Code 6205, Note (2014). Finally, the Board has considered whether the Veteran may be entitled to an extraschedular rating pursuant to 38 C.F.R. § 3.321 (2014). On review, the referenced diagnostic code contemplates the Veteran's hearing loss, to include consideration of puretone thresholds and speech discrimination scores. Higher schedular ratings are available for greater levels of disability. As the rating criteria are considered adequate, referral for consideration of an extraschedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 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 condition fails to capture all the service-connected disabilities experienced. In addition to hearing loss, the Veteran is service-connected for Meniere's disease with tinnitus and left knee strain. The only issue currently for appellate consideration is the evaluation for the service-connected hearing loss. Accordingly, that is the only disability the Board has considered in the extraschedular analysis with respect to considering the collective impact of the disabilities. See id. (Continued on the next page) ORDER For the period prior to June 18, 2009, an initial compensable rating for bilateral hearing loss is denied. For the period from June 18, 2009, a rating greater than 10 percent for bilateral hearing loss is denied. REMAND The Board regrets the delay occasioned by another remand, but finds that further action is needed as concerns the TDIU issue. At this time, the Veteran does not meet the schedular requirements for an award of TDIU. See 38 C.F.R. § 4.16(a) (2014). In reviewing the record, it appears that there is a pending claim for increase for Meniere's disease with tinnitus. This issue was referred by the Board in November 2013. A February 2014 deferred rating decision indicates that the issue needed to be established and development completed. On review, there is no indication that the claim was adjudicated. The Board finds this claim inextricably intertwined with the TDIU issue and as such, it should be adjudicated prior to further action on the appeal issue. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). The Veteran underwent an ear conditions examination in June 2014. The examiner remarked that the Meniere's was severe at the current time with recent worsening. Further, that this worsening would make him unable to do any tasks with any dangerous machinery. Also, he could not do tasks on a ladder or scaffold and the frequency and unpredictability of the attacks would present problems for anticipating an attack while in any workplace. In a January 2015 statement, the Veteran argued that VA did not consider this examination and that he should be rated 100 percent. On review, the June 2014 ear conditions examination report was not listed as evidence nor was it considered in the reasons and bases section of the January 2015 supplemental statement of the case addressing TDIU. On the contrary, the supplemental statement of the case stated that VA did not receive any information regarding his inability to work based solely on service-connected disabilities. This evidence must be considered on remand. See 38 C.F.R. §§ 19.31, 19.37 (2014). Accordingly, the case is REMANDED for the following action: 1. Adjudicate the claim for a rating greater than 30 percent for Meniere's disease with tinnitus. The Veteran should be provided with notice of this decision and his appellate rights, and informed that he must initiate and perfect an appeal of this issue prior to Board consideration of it. 2. Upon completion of the above requested development and any additional development deemed appropriate, readjudicate the claim of entitlement to a TDIU. The June 2014 ear conditions and audiometric examinations must be considered. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an opportunity to respond. 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 2014). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs