Citation Nr: 1514963	
Decision Date: 04/07/15    Archive Date: 04/21/15

DOCKET NO.  14-35 722	)	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 in excess of 10 percent for bilateral hearing loss.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

L. Kirscher Strauss, Counsel



INTRODUCTION

The Veteran served on active duty from April 1946 to February 1949. 

This matter comes before the Board of Veterans' Appeals (Board) from a January 2014 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.

In February 2015, the Veteran testified at hearing held at the RO before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.

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 2014).


FINDING OF FACT

The most probative evidence reflects that bilateral hearing loss is manifested by Level IV hearing loss in the right ear and Level III hearing loss in the left ear.


CONCLUSION OF LAW

The criteria for an initial rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014) redefined VA's duty to assist a claimant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014).

The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain.  38 C.F.R. § 3.159(b).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ).  Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant.  See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (holding that VCAA notice errors are reviewed under a prejudicial error rule).

In this case, the appeal arises from the initial award of service connection.  In Dingess, the Court held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection 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, 19 Vet. App. at 490-91; see also 38 C.F.R. § 3.159(b)(3)(i) (2014).  Thus, because the notice that was provided in December 2013 before service connection was granted was sufficient, VA's duty to notify in this case has been satisfied.  See generally Turk v. Peake, 21 Vet. App. 565 (2008) (holding that where a party appeals from an original assignment of a disability rating, the claim is classified as an original claim, rather than as one for an increased rating); see also Shipwash v. Brown, 8 Vet. App. 218, 225 (1995); see also Fenderson v. West, 12 Vet. App. 119 (1999) (establishing that initial appeals of a disability rating for a service-connected disability fall under the category of "original claims").

The Board also finds that VA has complied with all assistance provisions of the VCAA.  The evidence of record contains service treatment records, post-service private outpatient treatment records pertaining to other claimed disabilities, a VA audiological examination report, and lay statements from the Veteran.  There is no indication of relevant, outstanding records that would support the Veteran's claim.  38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3).  

In February 2015, the Veteran set forth his contentions at a hearing.  The record reflects that the undersigned identified the issue to be discussed at the hearing, explained how hearing loss is evaluated under the rating criteria, and inquired as to the availability of any records of evaluation and treatment for hearing loss that may substantiate the claim for a higher initial rating. These actions satisfied the duties a Veterans Law Judge has to explain fully the issues and to suggest the submission of evidence that may have been overlooked.  See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board).  Notably, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the hearing.

VA has considered and complied with the VCAA provisions discussed above.  The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence.  The Veteran was an active participant in the claims process by submitting evidence and argument.  Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so.  Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran.  Pelegrini, 18 Vet. App. at 121.  Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits.  See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issue decided on appeal.

Criteria & Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are:  interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; assigning the higher rating where there is a question as to which of two evaluations apply and where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999).  The Board notes that this issue involves the Veteran's dissatisfaction with the initial rating for his hearing loss disability assigned following the grant of service connection, and staged ratings are to be considered.

The Veteran is assigned a 10 percent rating for bilateral hearing loss pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100 (2014).  He contends that his hearing loss warrants a 100 percent disability rating.  He asserts that his hearing loss has a "profound, bad effect" because he "can[not] really hear" people speaking in a normal voice and they must talk into his ear for him to hear and understand.

The assignment of disability ratings for service-connected hearing impairment is 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).  Evaluations for defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (using the Maryland CNC) together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz.  The rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal auditory acuity to Level XI for profound deafness.  38 C.F.R. § 4.85.

Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns).  38 C.F.R. § 4.85(b).

Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average.  Table VIa will be used when the examiner certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86, pertaining to exceptional patterns of hearing impairment.  38 C.F.R. § 4.85(c).

Table VIA*
Numeric designation of hearing impairment based
only on puretone threshold average
Puretone Threshold Average
0-41
42-48
49-55
56-62
63-69
70-76
77-83
84-90
91-97
98-104
105+
I
II
III
IV
V
VI
VII
VIII
IX
X
XI
*This table is for use only as specified in §§ 4.85 and 4.86. 

Table VII, "Percentage Evaluations for Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing.  The percentage evaluation is located at the point where the row and column intersect.  See 38 C.F.R. § 4.85, Diagnostic Code 6100.

Table VII
Percentage evaluation for hearing impairment  (Diagnostic Code 6100)
Poorer Ear
Better 
Ear











XI
100










X
90
80









IX
80
70
60








VIII
70
60
50
50







VII
60
60
50
40
40






VI
50
50
40
40
30
30





V
40
40
40
30
30
20
20




IV
30
30
30
20
20
20
10
10



III
20
20
20
20
20
10
10
10
0


II
10
10
10
10
10
10
10
0
0
0

I
10
10
0
0
0
0
0
0
0
0
0 

XI
X
IX
VIII
VII
VI
V
IV
III
II
I

When the pure tone thresholds at the four specified frequencies (1000, 2000, 3000, and 4000 hertz) are 55 decibels or more, or when the pure tone thresholds are 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz, 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.  That numeral will then be elevated to the next highest Roman numeral.  See 38 C.F.R. § 4.86. 

In December 2013 the Veteran underwent a VA audiology examination.  He described his active duty military noise exposure and indicated that after the war, he entered the Philippine Army as a driver for 6 years and then worked at Clark Air Field as an ammunition worker for 24 years with exposure to noises from forklift vehicles.  Pure tone thresholds, in decibels, were reported as follows:



HERTZ


A
1000
B
2000
C
3000
D
4000
A+B+C+D
AVG.
RIGHT
45
55
60
75
59
LEFT
50
50
55
65
55

The audiologist explained that use of word recognition scores (Maryland CNC word list) was inappropriate for the Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that made combined use of puretone average and word recognition scores inappropriate.  

Because the audiologist certified that the use of the speech discrimination test was not appropriate, the Board must apply the puretone threshold results to Table VIa pursuant to 38 C.F.R. § 4.85(c).  Applying the above results to Table VIa, a puretone threshold average of 59 decibels in the right ear results in Level IV hearing for that ear.  A puretone threshold average of 55 decibels in the left ear results in Level III hearing for that ear.  Under Table VII, a Level IV for the right ear combined with a Level III for the left ear results in a 10 percent evaluation.  Subjectively, the Veteran described having to ask speakers to repeat questions for him to hear and understand.

In February 2015, the Veteran testified that he believed a rating higher than 10 percent was warranted because he currently had "a lot of disabilities like prostate condition, a heart condition and diabetes."  He indicated that he had not received any treatment or testing for his hearing loss.

The Board notes that the VA examination in December 2013 was conducted in accordance with 38 C.F.R. § 4.85(a) and is highly probative.  The Board acknowledges that in Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the United States Court of Appeals for Veterans Claims (Court), noted that VA had revised its hearing examination worksheets to include the effect of the veteran's hearing loss disability on occupational functioning and daily activities.  

The VA examiner's report included the reported effects of the Veteran's hearing loss on his daily functioning.  Specifically, the examiner reviewed the claims file and noted that the Veteran complained his hearing loss caused difficulty because he had to ask others to repeat themselves.  The reported functional impairment is consistent with statements made in his February 2014 notice of disagreement and October 2014 substantive appeal in which he described the extent of the effects of his disability to include difficulty hearing normal speaking tones and needing others to speak into his ear.  Accordingly, the VA examination provided the requisite information concerning the functional impact of his hearing loss and included objective examination data in accordance with the requirements set forth in 38 C.F.R. § 4.85(a).

The Board acknowledges the Veteran's complaints regarding the functional impact of his hearing loss on his daily life, but the assignment of disability ratings for hearing impairment is derived from a mechanical formula based on levels of pure tone threshold average and speech discrimination.  The findings on examination are more probative than the lay contentions as to the extent of hearing loss.  In this regard, the Board observes that while the Veteran has described his hearing loss having a "profound, bad effect" on his ability to communicate, the objective findings did not confirm hearing impairment that warranted more than a 10 percent disability rating for VA compensation purposes.

In summary, the most probative evidence indicates that the Veteran's hearing loss falls clearly within the criteria for a 10 percent rating for the duration of the claim.  The Board has considered staged ratings under Fenderson v. West, 12 Vet. App. 119 (1999), but concludes they are not warranted because the medical and lay evidence of record did not support a higher rating than that already assigned.  Therefore, the assigned 10 percent rating for bilateral hearing loss is proper throughout the appeal period and a higher rating for bilateral hearing loss is denied.

As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry.  See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  The first question is whether the schedular rating criteria adequately contemplate the Veteran's disability picture.  Thun, 22 Vet. App. at 115.  If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  If the schedular criteria are found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms.  If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted.

The discussion above reflects that the Veteran has not identified any symptoms of hearing loss not specifically referenced by the applicable rating criteria.  The Board emphasizes that 38 C.F.R. § 4.86 specifically allows for consideration of exceptional patterns of hearing impairment, which were not shown on VA examination in December 2013.  Similarly, Table VIa provides an alternative method for evaluating hearing impairment when use of the speech discrimination test is not appropriate, as in this case.  Therefore, the Board finds that his hearing loss disability is fully contemplated by the applicable rating criteria.  Nevertheless, the Veteran does not contend, and the evidence does not reflect, that his hearing loss disability has caused frequent hospitalization.  Also, he has not been working; therefore, his hearing loss disability has not been shown to interfere with any employment.  Therefore, the Board finds that the applicable rating criteria adequately contemplate the Veteran's hearing loss disability and referral for consideration of an extraschedular rating is not warranted.  38 C.F.R. § 3.321(b)(1).

Finally, under Johnson v. McDonald, 762 F. 3rd 1362 (2014), a Veteran may be awarded an extraschedular rating based on 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.  The Veteran is also service connected for tinnitus.  Nevertheless, in this case, after applying the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional disabilities that have not been attributed to a specific service-connected condition, and no other increased rating claims are before the Board.  Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.

In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim for a higher initial rating than that assigned for bilateral hearing loss, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).


ORDER

Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss is denied.



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

Department of Veterans Affairs