Citation Nr: 1514054	
Decision Date: 04/01/15    Archive Date: 04/09/15

DOCKET NO.  14-35 720	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUE

Entitlement to an initial rating higher than 30 percent for bilateral hearing loss.


WITNESSES AT HEARING ON APPEAL

The Veteran and E.F.


ATTORNEY FOR THE BOARD

B. Elwood, Counsel


INTRODUCTION

The Veteran served with the Special Philippine Scouts from May 1946 to March 1949.
This matter comes before the Board of Veterans' Appeals (Board) from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.  In that decision, the RO granted service connection for bilateral hearing loss and assigned an initial 30 percent disability rating, effective from June 6, 2013.

The Veteran testified before the undersigned at a February 2015 hearing at the RO (Travel Board hearing).  A transcript of the hearing has been associated with the file.

In February 2015, the Board granted a motion to advance this appeal on its docket pursuant to 38 C.F.R. § 20.900 (c) (2014).  38 U.S.C.A. § 7107 (a)(2) (West 2014).

This appeal was processed using the Veteran's Benefits Management System (VBMS) and the Virtual VA paperless claims processing system.  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records.


FINDING OF FACT

The Veteran has had at worst level VII hearing loss in the right ear and level VI hearing loss in the left ear.


CONCLUSION OF LAW

The criteria for an initial rating higher than 30 percent for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code (DC) 6100 (2014).



REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014).

The appeal for a higher initial rating for bilateral hearing loss arises from the Veteran's disagreement with the initial rating assigned after the grant of service connection.  The courts have held, and VA's General Counsel has agreed, that where an underlying claim of service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003).

The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as initial rating) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105.  Goodwin v. Peake, 22 Vet. App. 128 (2008).  Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements.  Id.  There has been no allegation of such error in this case.

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. 
§ 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).  

The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) (2014) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam).

At the Veteran's February 2015 hearing, the undersigned identified the issue on appeal, explained to the Veteran the types of evidence that was relevant to his appeal for a higher initial rating for hearing loss, and asked him about the symptoms and history of his hearing loss and the treatment received for the disability to ensure that all relevant treatment records had been obtained.  Further, the Veteran provided testimony as to the symptoms of his hearing loss and as to why he believed a higher initial rating was warranted, thereby demonstrating actual knowledge of the ability to identify and submit additional relevant evidence.  The duties imposed by Bryant were thereby met.

VA obtained pertinent service personnel records.  The Veteran has not reported, and the evidence does not otherwise reflect, that he has received any relevant post-service VA or private medical treatment for hearing loss.  In addition, the Veteran was afforded a VA examination to assess the severity of his service-connected hearing loss. 

The agency of original jurisdiction (AOJ) contacted the National Personnel Records Center (NPRC) and requested all of the Veteran's available service treatment records.  The NPRC responded that no such records were available and that they were presumed to have been destroyed in a fire at that facility in 1973.

Destruction of service treatment records does not create a heightened benefit of the doubt, but only a heightened duty on the part of VA to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision.  Cromer v. Nicholson, 19 Vet App 215 (2005); Russo v. Brown, 9 Vet. App. 46, 51 (1996).  

Where service treatment records are missing, VA also has a duty to search alternate sources of service records.  Washington v. Nicholson, 19 Vet. App. 362 (2005).  The service department has not suggested alternate sources of records, but VA did ask the Veteran for copies of any records in his possession and provided him with a Request for Information Needed to Reconstruct Medical Data form (NA Form 13055) by way of a June 2013 letter.  The Veteran has not submitted any service treatment records or any completed NA Form 13055 and he has not otherwise indicated that he has any such records in his possession.

Thus, the Board finds that any further efforts to obtain the Veteran's service treatment records would be futile.  38 C.F.R. § 3.159(c)(2).  Nevertheless, as the Veteran's current appeal is based on the severity of his hearing loss during a period decades after his separation from service, any service treatment records would not be relevant in this instance.

A VA audiology examiner is required to fully describe the functional effects caused by a hearing disability.  Martinak v. Nicholson, 21 Vet. App. 447, 454 (2007).  In Martinak, the Court held that this duty was fulfilled where the examiner recorded the Veteran's complaints that hearing loss and tinnitus interfered with sleep.  Id.

The examiner who conducted a July 2013 VA examination noted that the Veteran's hearing problems included hearing loss.   During the examination, the Veteran reported that as a result of his hearing loss he was barely able to communicate and that he needed words to be shouted loudly and repeatedly in order for him to be able to hear and understand the words.  Hence the functional effects of the Veteran's hearing disability were considered.

The July 2013 VA audiologic examination was otherwise adequate for rating purposes, as it included a pure tone audiometry test in accordance with 38 C.F.R. § 4.85.  As explained below, the examiner certified that the use of a speech discrimination test was not appropriate in this case.  The examiner also included an opinion as to the severity of the Veteran's hearing loss in that it was noted that the Veteran had bilateral sensorineural hearing loss in the frequency range of 500 to 4,000 Hertz.
Analysis

Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155.

Where service connection has been granted and the assignment of an initial rating is disputed, separate ratings may be assigned for separate periods of time based on the facts found.  In other words, the ratings may be "staged."  Fenderson v. West, 12 Vet. App. 119, 125-126 (1999).

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected.  38 C.F.R. § 4.21.

The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required.  38 C.F.R. §§ 4.1, 4.2, 4.10.

Hearing loss is rated on the basis of examination results including a controlled speech discrimination test (Maryland CNC), and a pure tone audiometric test of pure tone decibel thresholds at 1000, 2000, 3000, and 4000 Hz with an average pure tone threshold obtained by dividing these thresholds by four.  38 C.F.R. § 4.85.

Once these test results have been obtained, employing Table VI, a Roman numeral designation of hearing impairment is ascertained based on a combination of the percent of speech discrimination and pure tone threshold average.  Once a Roman numeral designation of auditory acuity level for each ear has been determined, Table VII is used to determine the percentage evaluation for bilateral hearing loss by combining the Roman numeral designations of auditory acuity level for hearing impairment of each ear.  Id.

There is an alternative method of rating hearing loss in defined instances of exceptional hearing loss.  In such exceptional cases, the Roman numeral designation for hearing loss of an ear may be based only on pure tone threshold average, using Table VIA, or from Table VI, whichever results in the higher Roman numeral.  Exceptional hearing loss exists when the pure tone threshold at the frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more; or where the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz.  In the latter situation, the higher Roman numeral, determined from Table VI or VIA, will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86.

The Roman numeral designation for hearing loss of an ear will be based only on pure tone threshold average using Table VIA when an examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc.  38 C.F.R. § 4.85(c).

The July 2013 VA examination report included among the Veteran's paperless records in the Virtual VA system indicates that his pure tone thresholds, in decibels, were as follows:

Hertz
1,000
2,000
3,000
4,000
Average
Right ear
75
80
95
70
80
Left ear
70
70
85
70
74

The examiner who conducted the July 2013 examination certified that the use of a speech discrimination score was not appropriate for the Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that made combined use of the puretone average and speech discrimination scores inappropriate.  Thus, the Board will determine the Roman numeral designations for the hearing loss of each ear based only on the pure tone threshold average using Table VIA.  See Id.

Using Table VIA, the July 2013 VA examination revealed level VII hearing loss in the right ear and level VI hearing loss in the left ear.  Combining level VII hearing loss for the right ear and level VI hearing loss for the left ear according to Table VII yields a rating of 30 percent.

The Veteran has expressed his belief that the severity of his hearing loss warrants a higher rating.  He is competent to report the symptoms of his hearing disability and the Board has no legitimate basis to challenge the credibility of his contentions.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).  However, ratings for hearing loss are determined by a mechanical application of the VA rating schedule to the numeric designations assigned based on audiometric test results.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).   The Veteran's statements do not show that he meets the specific pure tone thresholds and/or speech discrimination percentages required for an initial rating higher than 30 percent for bilateral hearing loss at any time since the effective date of service connection.   

In reaching its decision in this appeal, the Board has resolved reasonable doubt in the Veteran's favor, where applicable.  The record does not show that the evidence is so evenly balanced as to warrant an initial rating higher than 30 percent for bilateral hearing loss; nor does the evidence show that the Veteran's hearing disability more closely approximates the criteria for a higher rating.

Extraschedular

Pursuant to 38 C.F.R. § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321(b)(1).  The question of an extraschedular rating is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242, 244 (2008).

If the evidence raises the question of entitlement to an extraschedular rating, 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.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of a claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization").  

There is no allegation or evidence of exceptional factors in this appeal.  The symptom of the Veteran's claimed disability is hearing loss.  This symptom is specifically contemplated by the rating criteria as set forth above.  Moreover, even if it were found that the Veteran's symptoms were not contemplated by the appropriate diagnostic criteria, there is no evidence of any other related factors, such as marked interference with employment or frequent periods of hospitalization, due to hearing loss during the claim period.  Thus, referral for consideration of an extraschedular evaluation is not warranted.  38 C.F.R. § 3.321(b)(1).

Total Rating for Compensation Purposes Based on Individual Unemployability (TDIU)

The Court has held that entitlement to a TDIU may be an element of an appeal for a higher initial rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability.  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met).

The Veteran has not reported, and the evidence does not otherwise reflect, that he has been unemployed during the claim period due to any service-connected disability or that he is prevented from securing and following gainful employment due to any such disability.  As there is no evidence of unemployability, the question of entitlement to a TDIU is not raised under Roberson and Rice in this instance.


ORDER

Entitlement to an initial rating higher than 30 percent for bilateral hearing loss is denied.



____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs