Citation Nr: 1548993	
Decision Date: 11/19/15    Archive Date: 11/25/15

DOCKET NO.  08-03 819	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for a back condition.

2.  Entitlement to an initial rating in excess of 40 percent for bilateral hearing loss prior to November 9, 2012, and in excess of 50 percent thereafter.


REPRESENTATION

Veteran represented by:	The American Legion



ATTORNEY FOR THE BOARD

Jack S. Komperda, Associate Counsel

INTRODUCTION

The Veteran served on active duty from May 1952 to April 1953.

This case is before the Board of Veterans' Appeals (Board) on appeal from November 2006 and September 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.  

In August 2010, the Board denied the Veteran's appeal seeking an increased rating for his bilateral hearing loss.  The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court).  In an August 2011 decision, the Court vacated the Board's decision and remanded the case.

The issue of an initial increased rating for bilateral hearing loss was last before the Board in March 2012, at which time the Board remanded the matter for further development.  

In a November 2012 rating decision, the Appeals Management Center (AMC) increased the rating to 50 percent, effective November 9, 2012.  While the rating for hearing loss was increased during the course of the appeal, the claim for higher rating remains before the Board because the staged ratings assigned for the periods remain less that the maximum available benefit awardable for each period.  See AB v. Brown, 6 Vet. App. 35 (1993); Fenderson v. West, 12 Vet. App. 119 (1999).  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  The claim for service connection for a back condition was last denied in a June 1995 rating decision.  The Veteran did not submit new and material evidence within one year of that decision or initiate an appeal.  The decision became final.

2.  Evidence submitted since the June 1995 rating decision does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for a back condition.

3.  For the period prior to November 9, 2012, the Veteran had no worse than Level VIII hearing acuity in his right ear and Level VII hearing loss in his left ear.

4.  Since November 9, 2012, the Veteran had no worse than Level IX hearing acuity in his right ear and Level VIII hearing loss in his left ear.


CONCLUSIONS OF LAW

1.  New and material evidence has not been received to reopen the claim of entitlement to service connection for a back condition.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015).

2.  The criteria for assignment of an initial rating in excess of 40 percent for bilateral hearing loss prior to November 9, 2012, and in excess of 50 percent thereafter, were not met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.85, 4.86, Diagnostic Code (DC) 6100 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Notice and Assistance

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  In claims to reopen, while VA is not required to provide notice of the information and evidence necessary to substantiate the element or elements that were found insufficient in the previous denial of the claim, it is required "to explain what 'new and material evidence' means."  Akers v. Shinseki, 673 F.3d 1352, 1358 (Fed. Cir. 2012).  Notice was provided in an April 2011 letter to the Veteran.

With respect to the Veteran's claim seeking an initial increased rating for bilateral hearing loss, this appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection.  Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  No additional discussion of the duty to notify is therefore required. 

VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection.  The Veteran's claims file contains his service treatment records, military service records, as well as VA medical treatment records and statements from the Veteran.  The Veteran has not identified, and the record does not otherwise indicate, any additional relevant medical records that have not been obtained and associated with his file.

The Veteran has not been afforded a VA compensation examination with respect to his petition to reopen a claim seeking service connection for a back condition.  However, VA need not conduct an examination or obtain a medical opinion with respect to the issue of whether new and material evidence has been received to reopen the previously denied claim of service connection because the duty under 38 C.F.R. § 3.159(c)(4) applies to a claim to reopen only if new and material evidence is presented or secured.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  

The Veteran was afforded multiple VA audiological examinations, the most recent in July 2015, which are adequate to adjudicate his increased rating claim for bilateral hearing loss.  In August 2015, a VA audiologist also provided a detailed assessment of the effects of the Veteran's hearing loss on his occupational functioning and daily activities that was adequate for the Board to adjudicate his hearing loss claim.

The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claims.

II.  New and Material Evidence

The Veteran seeks to reopen a previously denied claim seeking service connection for a back condition.  The Veteran contends he hurt his back in service and was hospitalized at a service department hospital for complaints of back pain prior to discharge from service.  

A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement and substantive appeal are filed within the applicable time limits.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103.

If a claim has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim.  38 U.S.C.A. § 5108.

New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010).  
	
VA must review all of the evidence submitted since the last final decision on any basis in order to determine whether the claim may be reopened.  Evans v. Brown, 9 Vet. App. 273 (1996).  

For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).  

The Veteran's original claim seeking service connection for a back condition was denied in a March 1971 rating decision.  The Veteran sought to reopen his claim in August 1976, which was denied in a September 1976 rating decision.  In an August 1977 decision, the Board determined that there was no evidence submitted since the March 1971 determination which would show that a chronic back disability was incurred in or aggravated during service.  Further, the Board determined that a back disability was first demonstrated several years after service, and service medical records did not reflect a chronic back disability during service.  As such, the Board concluded that entitlement to service connection for a back disability was not warranted.

In January 1995, the Veteran sought to reopen his claim.  In support of his claim, he submitted a statement from his brother attesting to seeing the Veteran on crutches after returning home following discharge from the Navy.  The brother said the Veteran told him he hurt his back while in service.  In a June 1995 rating decision, the RO determined that the Veteran's newly submitted evidence did not provide a new factual basis for reconsideration and denied the petition to reopen.  The Veteran was notified of this decision that same month, but did not file an appeal.  That rating decision became final.  38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103.  

Evidence of record at that time of the last final June 1995 rating decision included the Veteran's service treatment records, statements from the Veteran and his brother attesting to the Veteran's complaints and treatment for chronic lumbar back pain, as well as numerous post-service medical records.  X-rays of the Veteran's spine taken in December 1992 reflected findings of extensive degenerative spondylosis with large osteophytes, narrowing, and some calcification of the anterior spinal ligament.  

In March 2011, the Veteran filed his current petition seeking to reopen his claim of entitlement to service connection for a back condition, which was denied in a September 2011 rating decision.  In October 2011, the Veteran submitted a statement which the Board characterizes as a notice of disagreement.  He referred to the September 2011 rating decision and contended that his two post-service back surgeries were related to his claim seeking service connection for a back injury during service.  

In November 2013, the Veteran again submitted an application for benefits and included a back condition as one of his two claims.  In an August 2014 rating decision, the RO again concluded that the Veteran did not submit new and material evidence sufficient to reopen his claim. 

Evidence submitted since the last final June 1995 rating decision includes numerous VA treatment records which continue to document the Veteran's complaints of chronic low back pain.  In particular, a September 2005 private treatment record reflects the Veteran underwent an MRI of the lumbar spine which revealed postoperative changes to the L4-5 and L5-S1 portions of the Veteran's spine.  The examiner's report also notes the Veteran had spinal stenosis along portions of the spine.  A May 2011 VA general medical examination notes a diagnosis of lumbar radiculopathy residuals, status post two discectomy surgeries (1958, 1977) for degenerative disc disease.  An April 2014 VA x-ray examination report of the Veteran's spine notes the Veteran had multilevel degenerative changes.

This evidence was not of record at the time of the prior final rating decision, and therefore, the medical records are new.  However, none of these records relate the Veteran's claimed back condition to active duty service; thus, do not address an unestablished fact necessary to substantiate the claim.  As such, the Board finds that these medical records are not material.  Additional evidence, which consists merely of records of post-service treatment that do not indicate in any way that a condition is service-connected, is not new and material.  Cox v. Brown, 5 Vet. App. 95, 99 (1993).  

As for the Veteran's assertions that his back disability is related to active duty service, the Board finds they are not "new" as they are cumulative and redundant of assertions made prior to the June 1995 last final denial.  The Veteran's account of continuity of symptoms of back pain had already been rejected in the August 1977 Board decision on the merits.  Further, the Veteran is competent to report his symptoms, such as back pain and difficulty in walking, but he is not competent to state that his current back disability was due to active duty service.  There can be many possible causes for the Veteran's current back condition, and such a complex medical opinion falls outside the realm of common knowledge of a lay person.  Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007).  

The Veteran's statements and recently submitted medical evidence do not, even in light of all the evidence old and new, raise a reasonable possibility of substantiating the claim.  Accordingly, the Board finds that new and material evidence has not been received to reopen his service connection claim for a back condition.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.

III.  Increased Rating

The Veteran seeks an increased rating for his service-connected bilateral hearing loss.  He has maintained that his hearing loss prevents him from securing or following substantially gainful employment.  See April 2007 Notice of Disagreement.

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4.  The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  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.  38 C.F.R. § 4.7.

In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Where service connection 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.  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, the Board will assign staged ratings for separate periods of time.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  

The Veteran's bilateral hearing loss has been evaluated under 38 C.F.R. § 4.85, DC 6100.  This diagnostic code sets out the criteria for evaluating hearing impairment using pure tone threshold averages and speech discrimination scores.  Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85; there is no room for subjective interpretation.  See Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

Ratings for bilateral defective hearing range from 0 percent to 100 percent.  The basic method of rating hearing loss involves audiological test results of impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz.  To rate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness.  38 C.F.R. § 4.85.

The rating criteria include an alternate method of rating exceptional patterns of hearing; when the pure tone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  38 C.F.R. § 4.86.  

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.  38 C.F.R. § 4.85(c).  Table VIa will be considered because the Veteran has an exceptional pattern of hearing impairment, as defined in 38 C.F.R. § 4.86(a).

In the rating action on appeal, the RO granted service connection, effective March 17, 2006.  

The claims file contains VA treatment records which reflect that the Veteran was afforded an audiological evaluation in October 2006, in which pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
60
65
105
105
LEFT
25
65
70
80
95

His puretone average for the right ear was 83, and for his left ear was 78.  Speech recognition was 56 percent for his right ear and 60 percent for his left ear.  These audiologic results produce a numeric designation of "VIII" for the right ear and "VII" for the left ear using Table VI.  Using Table VIa produces a numeric designation of "VII" for both ears.  When either of these numeric designations is applied to the rating criteria, the result is a 40 percent rating.  38 C.F.R. § 4.85, 4.86a.

The Veteran submitted two private audiologic evaluations undertaken in March 2007 and August 2007, in which the results of the puretone audiometry test were presented in the form of a graph and were not numerically recorded.  The March 2007 examination noted speech discrimination scores of 64 percent in both ears.  The August 2007 report noted speech discrimination scores of 32 percent in the right ear and 68 percent in the left ear.  However, the evidence submitted does not indicate that the Maryland CNC was used in either examination.  Therefore, these evaluations are not adequate for rating purposes.  See 38 C.F.R. § 4.85(a).

The Veteran underwent a VA audiological examination in November 2007, in which pure tone thresholds, in decibels, were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
35
65
65
105
105
LEFT
35
65
65
80
95

His puretone average for the right ear was 85, and for his left ear was 76.  Speech recognition was 60 percent for his right ear and 76 percent for his left ear.  These audiologic results produce a numeric designation of "VIII" for the right ear and "V" for the left ear.  When these numeric designations are applied to the rating criteria, the result is a 30 percent rating.  38 C.F.R. § 4.85.  Using Table VIa produces a numeric designation of "VIII" for the right ear and "VI" for the left ear.  When these numeric designations are applied to the rating criteria, the result is a 40 percent rating.  38 C.F.R. § 4.86a.

The Veteran underwent a VA audiological examination in November 2009, in which pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
60
65
105
105
LEFT
30
60
65
80
95

His puretone average for the right ear was 84, and for his left ear was 75.  Speech recognition was 60 percent for his right ear and 74 percent for his left ear.  These audiologic results produce a numeric designation of "VIII" for the right ear and "VI" for the left ear.  Using Table VIa produces the same numeric designations for both ears.  When either of these numeric designations is applied to the rating criteria, the result is a 40 percent rating.  38 C.F.R. § 4.85, 4.86a. 

In June 2010, the Veteran's wife submitted a letter attesting to the worsening severity of the Veteran's hearing in the 22 years she has known him.  She stated the Veteran wears hearing aids, uses an amplified telephone and turns the television and radio up to high volumes.  She stated the Veteran frequently does not hear her if she speaks to him while his back is turned or when she speaks too quickly.  Further, in large gatherings, the Veteran becomes stressed with the background noise and removes his hearing aids.

The Veteran submitted two additional private audiologic evaluations undertaken in June 2010 and February 2011, in which the results of the puretone audiometry test were presented in the form of a graph and were not numerically recorded.  The June 2010 examination noted speech discrimination scores of 32 percent in the right ear and 40 percent in the left ear.  The February 2011 report noted speech discrimination scores of 32 percent in the right ear and 40 percent in the left ear.  However, the evidence submitted does not indicate that the Maryland CNC was used in either examination.  Therefore, these evaluations are not adequate for rating purposes.  See 38 C.F.R. § 4.85(a).

The Veteran underwent a VA audiological examination in May 2011, in which pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
60
70
105
105
LEFT
30
60
65
80
100

His puretone average for the right ear was 85, and for his left ear was 76.  Speech recognition was 60 percent for his right ear and 70 percent for his left ear.  These audiologic results produce a numeric designation of "VIII" for the right ear and "VI" for the left ear.  Using Table VIa produces the same numeric designations for both ears.  When either of these numeric designations is applied to the rating criteria, the result is a 40 percent rating.  38 C.F.R. § 4.85, 4.86a.  The examining audiologist noted the Veteran was not employed.  The Veteran stated during the examination that he cannot hear his wife when he is behind her.
 
Pursuant to the Board remand, the Veteran underwent a VA audiological examination in November 2012, in which pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
70
80
105
105
LEFT
40
70
75
85
105

His puretone average for the right ear was 90, and for his left ear was 84.  Speech recognition was 54 percent for his right ear and 63 percent for his left ear.  These audiologic results produce a numeric designation of "VIII" for the right ear and "VIII" for the left ear.  Using Table VIa produces the same numeric designations for both ears.  When either of these numeric designations is applied to the rating criteria, the result is a 50 percent rating.  38 C.F.R. § 4.85, 4.86a.  The examiner stated that the Veteran's hearing loss impacted the ordinary conditions of daily life, including the ability to work.  He noted the Veteran's reports of having trouble hearing sirens or horns when driving, as well as his difficulty in being able to understand people talking to him on the phone and in person.

The record includes the report of a VA audiological examination dated in January 2014, that was not conducted for compensation purposes.  The results, as transcribed by a VA audiologist in August 2015, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
50
75
100
105
105
LEFT
45
75
85
90
105

His puretone average for the right ear was 96, and for his left ear was 89.  Speech recognition was 50 percent for his right ear and 56 percent for his left ear.  These audiologic results produce a numeric designation of "IX" for the right ear and "VIII" for the left ear.  Using Table VIa produces the same numeric designations for both ears.  When either of these numeric designations is applied to the rating criteria, the result is a 50 percent rating.  38 C.F.R. § 4.85, 4.86a.  

The record also includes the report of a VA audiological examination dated in January 2015, that was not conducted for compensation purposes.  The results, as transcribed by a VA audiologist in August 2015, were as follows




HERTZ



500
1000
2000
3000
4000
RIGHT
50
75
95
105
105
LEFT
45
75
80
90
105

His puretone average for the right ear was 95, and for his left ear was 88.  Speech recognition was 56 percent for his right ear and 62 percent for his left ear.  These audiologic results produce a numeric designation of "VIII" for the right ear and "VIII" for the left ear.  When these numeric designations are applied to the rating criteria, the result is a 50 percent rating.  38 C.F.R. § 4.85.  Using Table VIa produces a numeric designation of "IX" for the right ear and "VIII" for the left ear.  When these numeric designations are applied to the rating criteria, the result is also a 50 percent rating.  38 C.F.R. § 4.86a.

The Veteran underwent a VA audiological examination in July 2015, in which pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
50
70
90
105
105
LEFT
45
75
80
90
105

His puretone average for the right ear was 93, and for his left ear was 88.  Speech recognition was 56 percent for his right ear and 65 percent for his left ear.  These audiologic results produce a numeric designation of "VIII" for the right ear and "VIII" for the left ear.  When these numeric designations are applied to the rating criteria, the result is a 50 percent rating.  38 C.F.R. § 4.85.  Using Table VIa produces a numeric designation of "IX" for the right ear and "VIII" for the left ear.  When these numeric designations are applied to the rating criteria, the result is also a 50 percent rating.  38 C.F.R. § 4.86a.  The examiner stated the Veteran's hearing loss impacted the ordinary conditions of daily life.  The Veteran described having difficulties hearing on the phone and having his wife finish his conversation for him.  He also stated he had difficulties with competing background noise and difficulties understanding multiple people in conversations.  When driving, the Veteran stated he cannot hear sirens.  He reported that it is frustrating and isolating and sometimes depressing.

The medical evidence of record, as detailed above, does not demonstrate the Veteran's hearing loss warrants the assignment of a rating in excess of 40 percent prior November 9, 2012, or in excess of 50 percent from November 9, 2012.  

The Board has considered the Veteran's statements regarding the severity of his hearing impairment which are probative and not incredible, but, as noted above, 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.  Lendenmann, supra; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005).  The audiological data presented warrant an increase to the currently assigned schedular evaluations for any point in time during the period on appeal. To that extent, the Veteran's contentions that any higher ratings are for assignment remain unsubstantiated.

The Board acknowledges that in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the U.S. Court of Appeals for Veterans Claims (Court) held that, relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  To that end, the VA audiologist in an August 2015 statement noted that the Veteran's reports of communication problems with his hearing loss was typical for someone with the Veteran's configuration and severity of hearing problems.  The examiner noted the Veteran's reports of being retired but still living an active lifestyle.  Without his hearing aids, the examiner stated the Veteran would struggle in both background noise and quiet environments in understanding speech.  The examiner stated the Veteran needs to wear his hearing aids in order to communicate more effectively.  Even in quiet situations with his hearing aids on, however, the examiner stated the Veteran would still only understand about 62 percent of the conversation and would need to look at the person or use an FM system in order to pick up visual and auditory cues to fill in the rest of the conversation.  With background noise, the examiner stated it would be even more difficult for the Veteran.  The use of telephones also poses a significant problem for the Veteran.  The examiner stated that understanding speech would be difficult for the Veteran since he would be unable to pick up on visual cues.  The use of a caption call telephone would allow the Veteran to pick up the telephone independently and would allow him to read the conversations as well as hear them over the telephone.  The examiner stated that with hearing aids on, the Veteran should be able to hear sirens while driving. 

The Board notes that in the present case, the VA audiological evaluations of record contain some findings relevant to the impact of the Veteran's hearing on his daily and/or occupational life, although this was not accomplished fully on each VA examination undertaken.  However, the Board notes that in Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009), the U.S. Court of Appeals for the Federal Circuit determined that the phrase "daily life" as used in Part 4 of 38 C.F.R., can be cited to Subpart A, which provides "regulations prescribing the policies and procedures for conducting VA medical examinations."  The Court has previously noted that regulations governing procedures for conducting VA medical examinations are not considered part of the rating schedule because, "[t]he rating schedule consists only of those regulations that establish disabilities and set forth the terms under which compensation shall be provided.  A regulation prescribing the policies and procedures for conducting a VA medical examination does not serve these purposes."  As such, the Federal Circuit stated that while the effects of daily life are relevant to the doctor conducting the examination, these effects are not relevant to disability rating specialist.  Therefore, the Board finds, in relying on the decision in Vazquez-Flores, that it is not necessary to do so and therefore, will proceed with the decision.  See Vazquez-Flores v. Shinseki, 580 F.3d at 1280.

The discussion above reflects that the Veteran's hearing disability is manifested by difficulty hearing speech.  The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing.  Hence, the rating criteria contemplate the Veteran's symptomatology.  

The Board must also consider whether there is a collective effect involving the Veteran's other service-connected disabilities acting with the hearing loss disability on appeal that gives rise to a referral for extraschedular consideration.  See Johnson v. Shinseki, 762 F.3d 1362 (Fed. Cir. 2014).  During the period under consideration, the Veteran was also service-connected for tinnitus and a psychiatric disorder, associated with the hearing loss.  Even after affording the Veteran the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there is no additional impairment that has not been attributed to a specific service-connected disability.  As such, this is not an exceptional circumstance in which extra-schedular consideration may be required to compensate the Veteran for disability that can be attributed only to the combined effect of multiple conditions.  Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary.  Thun v. Peake, 22 Vet. App. 111 (2008).  Referral for consideration of an extraschedular rating is therefore not warranted. 

A total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  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, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU).  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  

The Veteran submitted formal claims for TDIU in April 2007 and March 2011, citing his hearing loss as a reason for his unemployability.  While he initially appealed the denial of the April 2007 claim, as noted in the prior Board decision, he withdrew that appeal.  The March 2011 claim was denied in a September 2011 rating decision and the Veteran did not initiate an appeal of that decision.  There is no evidence of record subsequent to the September 2011 that re-raises the question of TDIU.  Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009).  Hence further consideration of TDIU is not warranted. 

The Board is sympathetic to the Veteran's position that higher ratings are warranted for his service-connected bilateral hearing loss.  However, the audiometric examination results, as compared to the rating criteria, do not warrant the assignment of a rating in excess of 40 percent prior November 9, 2012, or in excess of 50 percent from November 9, 2012.  Accordingly, the Board finds that the preponderance of the evidence weighs against the Veteran's increased rating claim.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Thus, the benefit of the doubt doctrine is not for application.


ORDER

New and material evidence not having been received, the application to reopen a claim of entitlement to service connection for a back condition is denied.

Entitlement to an initial rating in excess of 40 percent for bilateral hearing loss prior to November 9, 2012, and in excess of 50 percent thereafter, is denied.




______________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs