Citation Nr: 1528015	
Decision Date: 06/30/15    Archive Date: 07/09/15

DOCKET NO.  13-24 986	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUES

1. Entitlement to a rating in excess of 40 percent for bilateral hearing loss.

2. Entitlement to an effective date earlier than December 1, 2006 for the assignment of a disability rating higher than 10 percent for bilateral hearing loss.

3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

The Veteran and His Daughter


ATTORNEY FOR THE BOARD

Cheryl E. Handy, Counsel


INTRODUCTION

The Veteran served on active duty from July 1943 to December 1945, including service in World War II for which he was awarded the Bronze Star Medal.

This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in March 2010 and July 2012 of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, which denied a disability rating higher than 40 percent for hearing loss as well as an earlier effective date for the 40 percent rating and which denied entitlement to TDIU, respectively.

In June 2015, the Veteran appeared at a Board hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is in the claims file.

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).

The issue of entitlement to TDIU on an extraschedular basis is REMANDED to the AOJ.


FINDINGS OF FACT

1. Since December 2008, the Veteran's hearing loss has been manifested by pure audiometric results reflected by no worse than Level VII in one ear and Level VIII in the other.

2. The Veteran's hearing loss was manifested by pure tone threshold averages warranting assignment of Roman Numeral V for each ear on Table VIA as of one year prior to his December 2008 claim for a higher disability rating.


CONCLUSIONS OF LAW

1. The criteria for entitlement to a disability rating higher than 40 percent for hearing loss have not been met.  38 U.S.C.A. § 1155, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.85, 4.86, Diagnostic Code 6100 (2014).

2. The criteria for entitlement to a disability rating of 20 percent for hearing loss were met as of December 2007.  38 U.S.C.A. § 1155, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.85, 4.86, Diagnostic Code 6100 (2014).

3. The criteria for entitlement to an effective date prior to December 2008 for the assignment of 40 percent disability rating for hearing loss have not been met.  38 U.S.C.A. §§ 5108, 7104(b) (West 2014); 38 C.F.R. § 3.400 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014).

In December 2008, the RO sent the Veteran a letter, prior to adjudication of his claims, providing notice, which satisfied the requirements of the VCAA.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  No additional notice is required. 

Next, VA has a duty to assist the Veteran in the development of claims.  This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary.  38 C.F.R. § 3.159.

All pertinent, identified medical records have been obtained and considered.  The Veteran was afforded VA examinations in December 2008, February 2010, January 2012, and March 2014.  There is no argument or indication that the examinations or opinions are inadequate.  See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 

As VA satisfied its duties to notify and assist the Veteran, no further notice or assistance is required.  See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §3.159.

Assigning Disability Ratings

A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155.

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.  Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7.

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings."  Hart v. Mansfield, 21 Vet. App. 505, 510 (2007).  In this instance, the Board finds that staged disability ratings are warranted based on consideration of the effective date regulations, as explained more fully in that section below.



Facts and Analysis

Determination of hearing loss ratings is made using the results of audiometric testing, using pure tone thresholds and speech recognition based on the required Maryland CNC test.  It is a mechanical application of test results to a rating formula.  The Veteran in this case has expressed frustration with the mechanism for rating his hearing loss and feels that it does not accurately capture the level of impairment he feels in his daily life.  The Board is not unsympathetic to this argument, but is bound by the regulations and formulae as set forth in VA law.

The basis for evaluating defective hearing is the impairment of auditory acuity as measured by puretone threshold averages within the range of 1000 to 4000 Hertz and speech discrimination using the Maryland CNC word recognition test.  38 C.F.R. § 4.85, Diagnostic Criteria 6100.  Puretone threshold averages are derived by dividing the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz by four.  Id.

The puretone threshold averages and the Maryland CNC test scores are given a numeric designation, which is then used to determine the current level of disability based upon a pre- designated schedule.  See Tables VI and VII in 38 C.F.R. § 4.85. Under these criteria, the assignment of a disability rating is a "mechanical" process of comparing the audiometric evaluation to the numeric designations in the rating schedule.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1993).

For exceptional hearing impairment, 38 C.F.R. § 4.86 states that when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, 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 is to be evaluated separately.  Id.

Since the Veteran's claim for an increased disability rating in December 2008, he has been provided VA examinations in December 2008, February 2010, January 2012, and March 2014.  Currently his bilateral hearing loss is rated as 40 percent disabling.  Utilizing the specific charts set forth in the rating criteria, a 50 percent disability rating would require that one of the Veteran's ears be assigned at least a Roman numeral VI, and that the other be assigned at least a Roman numeral IX.  See 38 C.F.R. § 4.85, Table VII.  

As discussed above, the assignment of Roman numerals is based on audiometric test results, specifically either the convergence of puretone threshold averages and percent of speech discrimination or on puretone threshold averages alone where they are over 55 at 1000, 2000, 3000, and 4000 Hertz.  38 C.F.R. § 4.85.

At the December 2008 VA examination, the Veteran's puretone thresholds averaged 66.25 in his right ear, with a speech discrimination score of 54 percent, and 57.5 in his left ear, with a speech discrimination score of 58 percent.  Under Table VI, this yields a Roman numeral VIII for the right ear and a VII for the left ear.  (Using Table VIA, the Roman numerals would be a V and a IV, respectively, making this formula less advantageous to the Veteran.)  Roman numeral VIII and Roman numeral VII on Table VII converts to a 40 percent disability rating.

At the February 2010 VA examination, the Veteran's puretone thresholds averaged 70 in his right ear, with a speech discrimination score of 58 percent, and 68.75 in his left ear, with a speech discrimination score of 62 percent.  Using Table VI, this yields a Roman numeral VIII for the right ear and VII for the left ear; therefore, the outcome using Table VII is the same, 40 percent.

At the January 2012 VA examination, the Veteran's puretone thresholds averaged 75 in the right ear, with a speech discrimination score of 76 percent, and 66 in the left ear, with a speech discrimination score of 64 percent.  Using Table VI, these figures result in Roman numeral V for the right ear and VI for the left ear, which in turn convert to a 20 percent disability rating.

A VA treatment report from March 2013 shows puretone threshold averages of 72.5 in the right ear and 67.5 in the left ear, with speech discrimination scores of 74 and 67, respectively.  These findings convert to Roman numerals VII and VI, consistent with a 30 percent disability rating.

At the March 2014 VA examination, the Veteran's puretone threshold averages were 76 in the right ear and 73 in the left, with speech recognition scores of 60 and 48, respectively.  These findings yield Roman numerals VII and VIII, the same as the December 2008 and February 2012 examinations, and a 40 percent disability rating results after application of Table VII.

Based on all of the evidence set forth above, and the mechanical application of the formula provided by VA regulations, the Board must be deny the Veteran's claim for a disability rating greater than 40 percent for bilateral hearing loss.   While the Veteran's assertions regarding the impact on his ability to function are credible and persuasive, and the lay statements of family and friends offer strong support for his position, the strict criteria set forth in the law have not been met.  

Extraschedular Rating

Although the Board is precluded by regulation from assigning extraschedular ratings under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service.

The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate.  There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria.

If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is adequate, and no referral is required.  Thun v. Peake, 22 Vet. App. 111 (2008).

Here, the rating criteria for hearing loss disability are purely mechanical, involving application of audiometric testing results to the charts set forth in regulations.  As a natural result, the criteria capture the essentials of the Veteran's disability and symptoms.  There is a possibility of higher ratings for more severe hearing loss.  Therefore, the assigned schedular ratings are adequate and referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1).

Assigning Effective Dates 

Except as otherwise provided, the effective date of an evaluation and award of compensation based on a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 C.F.R. § 3.400.  Generally, the effective date of an award based on a claim for increase of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.  38 U.S.C. § 5110(a); see 38 C.F.R. § 3.400.  One exception to this general rule is that the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.  38 U.S.C. § 5110(b)(2); see 38 C.F.R. §§ 3.400(o)(1), (2).

In this instance, the Veteran's earlier effective date claim is complicated by the fact that a rating reduction took place effective September 1, 2006, changing the assigned rating for bilateral hearing loss disability from 20 percent to 10 percent, prior to the increased rating of 40 percent which was assigned December 1, 2008.  The Veteran's earlier effective date is based on a claim he filed for an increased rating during the interim between the rating decision, which proposed a rating reduction and the decision which effectuated the reduction.  Specifically, a March 2006 rating proposed reducing the Veteran's hearing loss disability rating from 20 percent to 10 percent.  In June 2006, the Veteran filed a claim for increased disability rating and a subsequent statement that month indicating that he was unwilling to accept the proposed reduction and requesting a personal hearing.  The request for personal hearing was subsequently withdrawn, and the RO mistakenly assumed that the disagreement with the proposed reduction had also been withdrawn.  Shortly thereafter, on June 23, 2006, the RO issued a rating decision which effectuated the rating reduction to 10 percent, with an effective date of September 1, 2006.  The Veteran did not appeal the June 23, 2006 rating decision.  

The Veteran filed another claim for increased disability rating for his bilateral hearing loss in December 2008.  Subsequent examination that same month showed that his hearing loss had worsened and a 40 percent disability rating was assigned effective December 1, 2008.  The Veteran appealed both the assigned rating of 40 percent and the date of the assigned rating, December 1, 2008, asserting that the date of claim should be based on the June 2006 claim for increased rating.  

With respect to the Veteran's claim for an increased disability rating filed in June 2006, the implicit denial rule or implicit denial doctrine propounded by the Courts must be considered.  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that where a claim, including a reasonably raised claim under a sympathetic reading, is not acted upon by the agency decision maker, it is deemed denied.  Andrews v. Nicholson, 421 F.3d 1278, 1284 (Fed. Cir. 2005).  The Federal Circuit subsequently held that when a claimant files more than one claim with the RO at the same time, if the RO acts on one of the claims but fails to specifically address the other, the second claim is deemed denied and the appeal period begins to run.  Deshotel v. Nicholson, 457 F.3d 1258, 1261 (Fed. Cir. 2006).  The United States Court of Appeals for Veterans Claims (Court), for its part, has held that, for a claim to be deemed denied, there must be a recognition of the substance of the claim in a decision, from which the claimant could reasonably deduce that the claim had been adjudicated, or an explicit subsequent adjudication of a claim for the same disability.  Ingram v. Nicholson, 21 Vet. App. 232, 255 (2007).  The Court in Ingram interpreted Andrews to stand for the proposition that, where an RO decision discusses a claim in terms sufficient to put the claimant on notice that it was being considered and rejected, then it constitutes a denial of that claim even if the formal adjudicative language does not "specifically" deny that claim.  Id.  The key question in the implicit denial inquiry is whether it would be clear to a reasonable person that VA's action that expressly refers to one claim is intended to dispose of others as well.  Adams v. Shinseki, 568 F.3d 956, 962-963 (Fed. Cir. 2009).

Later, in Cogburn v. Shinseki, 24 Vet. App. 205 (2010), the Court specifically listed four factors that must be considered when determining whether a claim was implicitly denied: (1) "The relatedness of the claims"; (2) "whether the adjudication alluded to the pending claim in such a way that it could reasonably be inferred that the prior claim was denied"; (3) "the timing of the claims"; and (4) whether "the claimant is represented."  Id. at 212-214.

Before addressing the Cogburn factors, however, the Board must first determine if a claim for an increased disability rating for bilateral hearing loss was explicitly made in June 2006 and/or whether a sympathetic reading of the facts can find that such were implied.  The document filed by the Veteran's representative on June 1, 2006 noted the Veteran's contention that his hearing loss had worsened.  This is clearly an explicit claim for an increased disability rating.  

Having determined that the Veteran had submitted a claim for increased disability rating for hearing loss, the Board must then determine if this claim was encompassed in the June 2006 rating decision effectuating the reduction of disability rating for hearing loss from 20 percent to 10 percent.  For this determination, application of the Cogburn factors is necessary. 

The first Cogburn factor is the relatedness of the claims, meaning the relatedness of the claim explicitly denied and the claim potentially implicitly denied, such that the claimant would receive notice that both claims had been denied when only one was discussed.  Id.  When explaining the relatedness factor, the Court indicated that it is important to note whether the claimant is seeking benefits for a generalized set of symptoms, a specifically diagnosed disorder, or two (or more) specifically diagnosed disorders that are closely related.  Id. 

In this instance, the Veteran's claim for an increased disability rating for hearing loss would be directly related to a decision reducing the assigned disability rating for hearing loss from 20 percent to 10 percent.  

The second Cogburn factor is "whether the adjudication alluded to the pending claim in such a way that it could reasonably be inferred that the prior claim was denied."  Cogburn at 212.

Here, the rating decision issued on June 23, 2006 noted that the examination in February 2006 had shown that the Veteran's hearing loss warranted only a 10 percent disability rating, and that, because "[t]he evaluation for hearing loss is based on objective testing, [h]igher evaluations are assigned for more severe hearing impairment."  The accompanying notification letter stated the Veteran could submit evidence referenced in an April 2006 letter - specifically, evidence showing that the reduction was not warranted or that the Veteran's hearing was worse than the proposed 10 percent disability rating - at any time and VA would reevaluate his claim.  As such, the Veteran was on notice that the evidence VA had did not support a disability rating higher than 10 percent for hearing loss disability.  

The third factor is the timing of the claims.  Cogburn at 216-217.  When explaining this factor, the Court discussed whether claims were filed simultaneously or separately over the course of months or years.  See id.  The Court indicated that the timing factor supported implicit denial when the claims were filed simultaneously. Id. at 216.

As noted above, the Veteran's claim for an increased disability rating was filed June 1, 2006, between the April 2006 rating decision in which VA proposed to reduce the rating for hearing loss claims and the June 23, 2006 rating decision which effectuated the reduction.  Under Cogburn, this timeline supports a finding of implicit denial.

The fourth Cogburn factor is whether the claimant was represented by an attorney.  Where a Veteran is unrepresented, VA has a duty to sympathetically read all pleadings.  While this duty also applies to represented Veterans, the Court indicates that the duty may be heightened for unrepresented Veterans.  Cogburn at 217.

In this case, the Veteran was represented by an agent of the Veterans of Foreign Wars of the United States (VFW), as he continues to be today.  However, as the claim for increased disability rating was clear, a sympathetic reading is not required.

Based on all of the Cogburn factors discussed above, and the facts of the case as set forth, the Board finds that the June 23, 2006 rating decision implicitly denied the claim for an increased disability rating for hearing loss.  As a result, the same time frame afforded for appealing the assignment of the 10 percent disability rating for hearing loss ended one year after the issuance of the June 23, 2006 rating decision.  The Veteran did not file any further claims for increase or evidence showing entitlement to a rating higher than 10 percent until December 2008.

The Board notes that the Veteran's statement filed on June 9, 2006, challenged the proposed rating reduction discussed in the rating decision issued in March 2006.  However, because this was only a proposed reduction, it did not represent an "adjudicative determination" by the RO and the subsequent statement would not constitute a notice of disagreement.  See 38 C.F.R. § 20.201.  The Veteran's recourse at the point was to submit evidence showing that a reduction was not appropriate, to include specifically audiometric test results, as was stated in the March 2006 rating decision and the accompanying notification letter dated in April 2006.  The lay statements by the Veteran and his associates attesting that he had trouble hearing were not pertinent to the question of where his hearing loss fell on VA's system of assessment.  Further, it was the June 23, 2006 rating decision, which made the reduction official and provided an effective date for the new lower disability rating.  The Veteran did not file a notice of disagreement with that rating decision, nor did he file any other statement which could be sympathetically read as constituting a notice of disagreement. 

Finally, under the law governing the assignment of effective dates, a higher disability rating shall be effective as of the date of claim or up to one year prior to the date of claim if there is evidence demonstrating entitlement at that point.  38 C.F.R. § 3.400.  A review of the record shows that the Veteran in December 2008 submitted a copy of a private audiogram from May 2007.  The audiogram showed puretone thresholds for both ears at 60 decibels or higher for all relevant frequencies, with average puretone thresholds of 63.75 for the right ear and 62.5 for the left ear.  Since the rating criteria for hearing loss are based on puretone thresholds described in whole numbers, these values are rounded up to 64 for the right ear and 63 for the left ear.  While the private audiometric testing did not include speech recognition, the puretone thresholds alone merit consideration under Table VIA, because they are all 55 decibels or more.  38 C.F.R. § 4.86.  In this instance, puretone thresholds ranging from 63 to 69 are assigned Roman numeral V, and the intersection of two Roman numeral V ratings on Table VII yields a 20 percent disability.  38 C.F.R. § 4.85.

Based on the May 2007 private audiogram, the Veteran is shown to have met the criteria for a 20 percent disability rating for his bilateral hearing loss.  Under 38 C.F.R. § 3.400, a 20 percent disability rating may be assigned up to one year prior to the date of claim for a higher rating if the criteria are met.  Therefore, for the claim filed December 1, 2008, a rating of 20 percent for bilateral hearing loss should have been assigned as of December 1, 2007.  However, entitlement to the 40 percent disability rating was not demonstrated until December 2008.  As such, the Board finds that a staged rating is appropriate, with 20 percent assigned as of December 2007 and 40 percent assigned as of December 2008.


ORDER

Entitlement to a disability rating higher than 40 percent for hearing loss is denied.

Entitlement to a 20 percent disability rating as of December 2007 is granted.

Entitlement to an effective date prior to December 2008 for the assignment of the 40 percent disability rating for hearing loss is denied.



REMAND

The Veteran seeks assignment of TDIU.  Total disability ratings for compensation may be assigned, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).

It is the policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled, notwithstanding the fact that the assigned schedular ratings do not equal 60 percent for a single disability or 70 percent for a combined disability. 38 C.F.R. § 4.16(b).  Thus, if a Veteran fails to meet the rating enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating should be considered if the Veteran is unemployable due to a service-connected disability.  38 C.F.R. § 4.16(b).

In this instance, the Veteran does not meet the schedular criteria for an award of TDIU, having a total combined disability rating of only 60 percent.  38 C.F.R. § 4.16.  In addition, while the Veteran's hearing loss and tinnitus as well as the left and right foot disabilities resulting from frostbite were all incurred during his service in World War II, they cannot be considered a single disability as frostbite is not an injury incurred in action and does not affect the same body system as the hearing loss and tinnitus.  38 C.F.R. § 4.16(a).

The Veteran's claim of entitlement to TDIU was denied by the RO based on the finding that the Veteran was not precluded from substantially gainful employment by his hearing loss and tinnitus, although he was severely disadvantaged by them.  However, the Board notes that consideration was not given to the Veteran's education and experience or to the effects of his frostbite residuals, both of which are relevant to the question of the Veteran's ability to obtain and maintain substantially gainful employment.  Therefore, a full medical opinion on the matter, with examination if necessary is warranted, as is a referral to the Director of Compensation and Pension Services for consideration of entitlement to TDIU on an extraschedular basis.  38 C.F.R. § 4.16(b).


Accordingly, the case is REMANDED for the following action:

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Provide the Veteran with a VA opinion and, if necessary, an examination as to whether it is at least as likely as not (probability 50 percent or greater) that his service-connected disabilities of tinnitus, bilateral hearing loss, and bilateral foot injuries resulting from frostbite render him unable to obtain and maintain substantially gainful employment that is consistent with his employment history and education.  The opinion should include consideration of the entire claims file and should address the lay statements provided by the AARP tax clinic co-workers and the transcript of the June 2015 hearing.  The opinion should include a written explanation or rationale.

2. Once the opinion has been obtained, the RO/AMC should submit the claims file to the Director of Compensation and Pension Services for consideration of entitlement to TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b).

3. The RO/AMC should then readjudicate the issue on appeal.  If the benefit sought on appeal is not granted in full, the RO/AMC must issue a supplemental statement of the case (SSOC) and provide the Veteran and his representative an opportunity to respond.


The appellant has the right to submit additional evidence and argument on the matter 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 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).




______________________________________________
Eric S. Leboff
Veterans Law Judge, Board of Veterans' Appeals






Department of Veterans Affairs