Citation Nr: 1550104 Decision Date: 11/30/15 Archive Date: 12/04/15 DOCKET NO. 14-19 842A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an initial compensable evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Dustin Ware, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1973 to December 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2013 rating decision of the Department of Veterans Affairs (VA) Muskogee, Oklahoma Regional Office (RO). FINDINGS OF FACT During the appeals period, the Veteran's bilateral hearing loss is shown to result in Level I hearing acuity bilaterally, which warrants a noncompensable rating under 38 C.F.R. § 4.85, Table VII. CONCLUSION OF LAW The criteria for an initial compensable evaluation 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 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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). 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. Service treatment records are associated with claims file. The Veteran was afforded a VA examination in July 2013. The Board finds this examination adequate for the purposes of the instant claim as it involved a review of the Veteran's pertinent medical history, a clinical evaluation of the Veteran, and provides an adequate discussion of relevant symptomatology. See generally Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Analysis Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to receive a staged rating; that is, be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). I. Rating Schedule The Veteran's service-connected bilateral hearing loss has been evaluated as noncompensable throughout the appeal period under the provisions of Diagnostic Code 6100. See 38 C.F.R. § 4.85. In evaluating hearing loss, disability ratings on a schedular basis are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The ratings schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in both ears. See 38 C.F.R. § 4.85. When the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, both Table VI and Table VIA are consulted and whichever results in the higher numeral is to be used. 38 C.F.R. § 4.86(a). Similarly, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, both Table VI and Table VIA are consulted and whichever results in the higher numeral is to be used. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). Turning to the record, a July 2013 VA audiology examination recorded pure tone thresholds, in decibels, as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Right 20 30 30 45 31 Left 25 30 35 55 36 Speech recognition was 98 percent bilaterally. Entering the average pure tone thresholds and speech recognition scores into Table VI reveals the numeric designation of hearing impairment is I for both ears. 38 C.F.R. § 4.85. Entering the category designations for each ear into Table VII results in a noncompensable evaluation under Diagnostic Code 6100. See 38 C.F.R. § 4.85. An exceptional pattern of hearing impairment has not been shown in either ear. Consideration of 38 C.F.R. § 4.86 is not warranted. The Board has also considered the Veteran's lay statements that his hearing loss disability is worse than currently evaluated. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of his hearing loss has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective complaints of increased symptomatology. In summation, there is no audiometric testing of record at any point during the appeal period that would indicate that a compensable evaluation for bilateral hearing loss is warranted. Accordingly, the claim for a compensable evaluation for hearing loss disability is denied. Absent a relative balance of the evidence, the evidence is not in equipoise and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As noted above, ratings for hearing loss are determined by a mechanical application of the audiometric findings to the rating provisions and the Board is constrained by the applicable laws and regulations. See Lendenmann 3 Vet. App. at 349. II. Other Considerations The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). In these exceptional or unusual cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court of Appeals for Veterans Claims (Court) has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability. In support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86. The rating criteria for hearing loss were last revised, effective June 10, 1999. See 64 Fed. Reg. 25206 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17295 (April 12, 1994). The Board has also considered that in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that, relevant to VA audiometric 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. The Court's rationale in requiring an examiner to consider the functional effects of a Veteran's hearing loss disability involves the potential application of 38 C.F.R.§ 3.321(b) in considering whether referral for an extraschedular rating is warranted. Specifically, the Court noted, that "unlike the rating schedule for hearing loss, § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extraschedular rating is warranted." The Board has considered the Veteran's statements with regards to his hearing loss, which indicate that the Veteran has problems hearing people who speak low, from behind him, or in a group. November 2013 Notice of Disagreement, June 2014 VA Form 9. Similarly, the Board has considered the functional impact, i.e. problems hearing over the telephone, television, and normal conversation, reported to the July 2013 VA audiologist. The Veteran's functional impairment due to hearing loss is a disability picture that is contemplated in the regulations and rating criteria as noted in the Federal Register cited above. The fact that the Veteran's hearing disability does not satisfy the numerical criteria for a compensable rating under these criteria, to include the criteria specifically designed for the type of real-world impairment experienced by the Veteran, does not place his symptomatology outside of that contemplated by the rating schedule or make application of the rating schedule impracticable in this case. Importantly, the Veteran is service connected for bilateral hearing loss disability. Hearing loss, by its very nature, involves a difficulty with hearing acuity. The Veteran has reported having difficulty with hearing acuity. Thus, his reported symptoms are the very symptoms considered in the rating criteria and do not represent an exceptional or unusual disability picture. The evidence does not reflect, and the Veteran has not alleged, that his hearing loss disability is manifested by other symptoms such as loss of another sense, migraines, ear pain, or speech difficulties. The Board finds that the first prong of Thun has not been met. Finally, the Board notes that entitlement to a total disability evaluation based on individual unemployability (TDIU) is an element of all increased rating claims. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). However, while the July 2013 VA examination report indicates that the Veteran's hearing loss has some impact on the ordinary condition of daily life, including ability to work, this does not appear to be such a marked interference with employment that further consideration of a claim for TDIU is appropriate. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER An initial compensable rating for bilateral hearing loss is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs