Citation Nr: 1514358 Decision Date: 04/02/15 Archive Date: 04/09/15 DOCKET NO. 07-26 107 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a compensable rating for service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Appellant and the Appellant's Spouse ATTORNEY FOR THE BOARD N. Sonia, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1965 to July 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran requested a hearing before a decision review officer (DRO) in connection with the claim. The DRO hearing was held in March 2008. The appellant and the appellant's spouse testified at the hearing. A transcript is of record. Subsequently, the claim was remanded for further development in January 2011, to include obtaining outstanding records and an audiogram. The case was returned to the Board, and the claim was denied by a December 2012 Board decision. A March 2014 Memorandum Decision of the United States Court of Appeals for Veterans Claims (CAVC) vacated and remanded the Board decision. Thereafter, the Board remanded the claim in August 2014 to obtain any updated treatment records, schedule the Veteran for a VA audiological examination, and obtain a VA medical opinion discussing the functional impact of the Veteran's bilateral hearing loss, to include specific discussion of the Veteran's reported dizziness, loss of balance, and ear aches. A review of the record reflects that updated treatment records were obtained from the VA Medical Center (VAMC) in Dallas, and the Veteran was provided a VA audiological examination in September 2014. The examiner discussed the functional impact of any hearing impairment and opined as to whether the Veteran's hearing loss would cause his reported dizziness, loss of balance, and ear aches. He also discussed the functional impact of the Veteran's hearing loss disabilities. As a result, the Board is satisfied that there has been substantial compliance with the remand directives and appellate review may continue. See Stegall v. West, 11 Vet. App. 268 (1998). Consideration of the Veteran's appeal has included review of all documents within the Virtual VA paperless claims processing system and the Veterans Benefits Management System. The documents within these systems include documents relating to the immediate appeal, and, as such, have been considered as part of the present appeal. The Board again notes that the issue of entitlement to a higher evaluation for a back condition was raised in a July 2014 statement by the Veteran. As the issue has not been adjudicated by the agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it, and it is again referred to the AOJ for appropriate action. FINDING OF FACT Bilateral hearing loss has been manifested by no worse than level I hearing in right ear and level II hearing in the left ear. The Veteran has reported difficulty hearing in various situations, with the most difficulty understanding speech from the left side. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1-4.3, 4.7, 4.10, 4.85, 4.87, Diagnostic Code 6100 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Generally, disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Evaluation of a service-connected disability requires a review of the Veteran's entire medical history regarding that disability. 38 C.F.R. §§ 4.1, 4.2 (2014). 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). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Specifically relevant to hearing loss claims, 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. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Specifically, evaluations for bilateral hearing loss range from non-compensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per second. To evaluate the degree of disability from the Veteran's hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from level I for slightly impaired hearing acuity through level XI for profound deafness. The results of such testing are charted on Table VI and VII. See 38 C.F.R. § 4.85. The Board notes that exceptional patterns of hearing impairment are addressed in 38 C.F.R. § 4.86. However, the evidence of record does not demonstrate any "exceptional" pattern as designated by VA regulations; nor has there been any allegation of such. Turning to the evidence of record, the Veteran underwent an audiological evaluation in July 2006. However, there is no report that a controlled speech discrimination test was performed in conformity with 38 C.F.R. § 4.85, which requires an examination to be conducted by a licensed audiologist and include a controlled speech discrimination test (Maryland CNC). Therefore, the Board finds that the July 2006 audiological evaluation is not adequate for rating purposes. However, the July 2006 audiogram also notes the Veteran's report of "dizzy" episodes beginning in 2004. The audiologist also stated the Veteran denied rotary vertigo but felt "off balance" sometimes, with episodes lasting a brief moment to five or six minutes. VA treatment notes from September 2006 show hearing aids were issued to the Veteran. Next, the Veteran was afforded a VA audiological examination in May 2007, in which he reported reduced hearing. The Veteran also reported dizziness, claiming the date of onset of such symptoms was in 2000. Etiology was described as unknown. Similarly, the examiner documented earaches of unknown origin. Moreover, puretone threshold averages in decibels were 21 in his right ear and 39 in his left ear. The speech discrimination scores were 96 and 92 percent in the right and left ears, respectively. Thus, the results yielded a numerical designation of I in the right ear and I in the left ear. Entering the category designations into Table VII, a non-compensable evaluation is for assignment under Diagnostic Code 6100. In March 2008, the Veteran provided testimony at hearing before a Decision Review Officer. He indicated that he needed to watch television at a higher volume. He stated that he would ask his wife if she was able to hear him. He reported wearing a hearing aid in his left ear, but that he felt his symptoms were worse since his May 2007 audiogram. Consequently, another VA audiological examination was obtained in April 2008. Puretone threshold averages in decibels were 24 in his right ear and 39 in his left ear. The speech discrimination scores were 100 and 94 percent in the right and left ears, respectively. However, the examination report indicates that he Veteran's right ear was tested via a bone condition, rather than an air conduction test. The left ear was tested with bone and air conduction tests. Therefore, the audiogram results are not adequate for rating purposes as VA audiology testing is normally evaluated by air conduction tests. Nonetheless, the examination report yielded a numerical designation of I in the right ear and I in the left ear. Entering the category designations into Table VII, a non-compensable evaluation is for assignment under Diagnostic Code 6100. Indeed, the examiner diagnosed normal hearing with the exception of mild sensorineural loss at 4000 Hertz for the right ear and a normal to moderate sensorineural loss for the left ear. At a March 2010 VA audiological examination, the Veteran reported difficulty hearing and understanding in all settings, but then indicated the most difficulty understanding speech from his left side. Puretone threshold averages in decibels were 27 in his right ear and 45 in his left ear. The speech discrimination scores were 96 and 84 percent in the right and left ears, respectively. Thus, the results yielded a numerical designation of I in the right ear and II in the left ear. Entering the category designations into Table VII, a non-compensable evaluation is for assignment under Diagnostic Code 6100. The examiner noted that there had been a slight decrease in hearing acuity since the last examination. A review of VA treatment records also note that the Veteran's hearing loss was consistently listed among ongoing conditions. In May 2014, hearing impairment was described as reflecting only "nominal changes since 2006." Hearing was described as within normal limits for all test frequencies in the right ear. Hearing was described as within normal limits from the 250 through 1500 Hertz, with a mild sensorineural hearing loss at the 2000 through 4000 Hertz. Most recently, a June 2014 treatment report again verified the appropriateness of the Veteran's current amplification. In September 2014, the Veteran was afforded another VA audiological examination. Puretone threshold averages in decibels were 19 in his right ear and 39 in his left ear. The speech discrimination scores were 92 and 88 percent in the right and left ears, respectively. Thus, the results yielded a numerical designation of I in the right ear and II in the left ear. Entering the category designations into Table VII, a non-compensable evaluation is for assignment under Diagnostic Code 6100. The Veteran was diagnosed with normal hearing in the right ear and sensorineural hearing loss in the frequency range of 500 to 4000 Hertz in the left ear. The examiner also detailed the functional impact of the Veteran's hearing loss disability. Although the examiner indicated that further evaluation or opinion regarding vestibular symptoms would be done by an ENT physician, he was able to explain that the Veteran's service-connected sensorineural (nerve) hearing loss would not be expected to cause dizziness, balance problems, or ear aches. He further explained that because the Veteran's hearing was normal in the right ear, but not the left, his symptoms would be expected to result in intermittent difficulty understanding speech in difficult listening situations, like in the presence of background noise, in groups, at a distance, and when the Veteran cannot see speakers' faces. Indeed, the Veteran reported difficulty clearly understanding speech, especially in a classroom or conference. He stated that he will "read lips" and is often criticized for speaking too loudly. Moreover, the examiner stated that the Veteran's hearing loss could contribute to poor social interactions and family stress. However, the examiner clarified that with "amplification and with reasonable accommodations as specified in the Americans with Disabilities Act, this hearing loss should not render him unable to secure and maintain substantially gainful employment." The Veteran's hearing loss was also found to have little impact on physical versus sedentary employment. Therefore, a review of the evidence shows that the Veteran's hearing loss has not met the criteria for a compensable rating throughout the appeal period. Although the Veteran has reported difficulty hearing in various situations, needing to turn up the volume on the television, reading lips, and speaking loudly, several audiograms were provided in conformity with 38 C.F.R. § 3.85. These audiograms showed no worse than Level I hearing in the Veteran's right ear and Level II hearing in his left ear. To the extent that the Veteran contends that his hearing loss is more severe than currently evaluated, the Board observes that as a lay person the Veteran is competent to report symptoms such as difficulty hearing conversational speech, but is not competent, meaning medically trained and qualified, to report that his hearing acuity is of sufficient severity to warrant a 10 percent or greater evaluation under VA's tables for rating hearing loss disabilities because such an opinion in considered to be a medically complex question (which requires medical training in evaluating hearing impairment and conducting audiometric testing, which the Veteran has not been shown to have). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1372; Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In sum, when evaluating the Veteran's bilateral hearing loss, the Board finds that, even after considering the effects of the disability on the Veteran's activities of daily living, the preponderance of the evidence is against the claim for a compensable rating. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.159, 4.1-4.16, 4.85, Diagnostic Code 6100; Gilbert, 1 Vet. App. at 49; Lendenmann, 3 Vet. App. at 349. The Board also finds no other diagnostic codes would be appropriate to evaluate the Veteran's bilateral hearing loss. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). As noted on the most recent VA examination, there are no other ear abnormalities identified, and, as will be discussed in more detail below, the Veteran's dizziness, balance problems, and ear aches have not been found to be the result of sensorineural hearing loss. The Board has considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) has been raised under Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the record reflects the Veteran has not been found to be unable to maintain substantially gainful employment solely because of his service-connected bilateral hearing loss. To the contrary, the evidence shows that while the Veteran may have difficulty hearing in various situations, he is not unemployable, especially in light of the proper use of amplification. As such, the Board finds that Rice is inapplicable in this case. Finally, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis, especially in light of the CAVC Memorandum Decision which explicitly instructed the Board to consider application of an extraschedular rating due to the Veteran's report of dizziness, balance problems, and ear aches. Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected hearing loss are inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe his disability levels and relevant symptomatology. The Veteran's description of an inability to hear has been measured according to puretone averages and speech discrimination. Moreover, the Board has specifically considered the functional effect of his hearing disability. See Martinak v. Nicholson, 21 Vet. App. 447, 453-54 (2007). However, the medical evidence fails to show that the schedular evaluation is inadequate. The Veteran's main symptom is difficulty hearing speech, which is contemplated by the rating criteria. Simply stated, while the Veteran may, in fact, have some problems hearing conversations well or need to increase the volume on his television, these types of problems are contemplated by the rating code that measures hearing acuity. In addition, this symptomatology, generally, would not impair the Veteran's ability to obtain work. Indeed, the September 2014 examiner's opinion shows that the Veteran is not unemployable as a result of his hearing loss, even after considering the reports of dizziness, balance problems, and ear aches. The audiologist found that such symptoms would not be expected as a result of sensorineural hearing loss, which involves the nerves. Therefore, the Board finds that the case does not present such an exceptional 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; it would not be found that the Veteran's disability met the "governing norms" of an extraschedular rating. The Veteran's contentions have generally been limited to those discussed above, i.e., that his disability is more severe than is reflected by the assigned rating. As was explained in the merits decision above in denying a higher rating, the criteria for higher schedular ratings were considered, but the rating assigned was upheld because the rating criteria are adequate. Accordingly, the Board finds that the rating schedule is adequate, even in regard to the collective and combined effect of all of the Veteran's service connected disabilities, and that referral for extraschedular consideration is not warranted under the circumstances of this case. Johnson v. McDonald, 2013-7104, 2014 WL 3562218 (Fed. Cir. Aug. 6, 2014). Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes 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); Dingess/Harman v. Nicholson, 19 Vet. App. 473 (2006). Here, the duty to notify was satisfied by a January 2007 letter to the Veteran. Regarding the duty to assist, the Board is satisfied VA has made reasonable efforts to obtain relevant records and evidence. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The evidence of record includes service treatment records, VA treatment record's, private treatment records, statements in support of the claim by the Veteran and his representative, hearing testimony before a Decision Review Officer, and several VA examinations. 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). As noted above, certain VA audiological examination provided were not adequate for rating purposes, specifically the July 2006 examination - which did not include a controlled speech discrimination test -and the April 2008 VA examination -which relied on bone conduction tests for measurement in the right ear. However, the Board notes that the May 2007 VA examination test contained both the air conduction test results and reflected the use of a controlled speech discrimination test (the Maryland CNC). Moreover, the May 2007 examiner noted the functional impairment of the Veteran's disability in describing his reduced hearing. The March 2010 examiner provided a more robust discussion of functional impairment, identifying the Veteran's difficulty hearing in various situations as well as his greater difficulty hearing speech from his left side. Nevertheless, as noted in the previous Remand, the examiners documented the Veteran's report of dizziness, loss of balance, and ear ache but did not explicitly indicate whether these symptoms were related to his service-connected hearing loss. Therefore, another examination was conducted in September 2014. Again, proper testing was provided in conformity with 38 C.F.R. § 4.85. The examiner reviewed the claims file and offered an opinion as to whether these symptoms were related to the service-connected ear condition causing his bilateral hearing loss and describing the functional effects of those symptoms. The examiner noted the Veteran's difficulty hearing in various situations, especially in noisy, distance, or group settings. The examiner documented the Veteran's report of having to read lips. The examiner further indicated that the Veteran's condition would not render him unemployable, especially with the use of amplification and accommodations. He even stated that the hearing loss would have little impact on physical versus sedentary employment. While the examiner noted that an ENT could offer more information, the Board finds that this does not render that examination report inadequate. The examination report contained the necessary competent opinions regarding dizziness, loss of balance, and ear ache such that referral for an additional opinion by an ENT, for the purposes of this decision, is not warranted. Therefore, the Board finds the examination was adequate because the examiner reviewed the Veteran's relevant medical history, recorded pertinent examination findings, and provided a sufficient analysis to support the conclusions rendered. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Therefore, a review of the VA examinations of record reflects that VA's duty to provide a VA examination is satisfied. Additionally, the Veteran testified at a hearing before a Decision Review Officer. An officer who chairs a hearing must fully explain the issues and suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the hearing, the Veteran was assisted by a representative, and both the representative and the VLJ asked relevant questions concerning the Veteran's symptoms and the resulting impairment, as well as the effect of his disability on his daily life. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2). Based on the foregoing, no further notice or assistance to the Veteran is required for fair adjudication of the Veteran's 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, 16 Vet. App. 183 (2002). ORDER Entitlement to a compensable rating for service-connected bilateral hearing loss. ____________________________________________ R. FEINBERG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs