Citation Nr: 1601264	
Decision Date: 01/12/16    Archive Date: 01/21/16

DOCKET NO.  11-27 530	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to an initial compensable rating for bilateral hearing loss. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Kristi L. Gunn, Counsel


INTRODUCTION

The Veteran served on active duty from January 1956 to April 1970. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. 

In May 2012, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the electronic file. 

In March 2014, September 2014, and August 2015, the Board remanded the claim for additional development and adjudicative action. The case has been returned to the Board for further appellate review. 

This appeal has been processed entirely electronically using the Veterans Benefits Management System (VBMS).

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).


FINDING OF FACT

At its worst, the Veteran has Level II hearing loss in the right ear and Level II hearing loss in the left ear.


CONCLUSION OF LAW

The criteria for a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.385, 4.1-4.14, 4.85, 4.86 Diagnostic Code (DC) 6100 (2015).
REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). 

VA's Duty to Notify and Assist

The Veterans Claims Assistance Act (VCAA) and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate the claim, including apprising him of his and VA's respective responsibilities in obtaining this supporting evidence. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA to assist a claimant in obtaining this evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). 
Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if pre-adjudication notice is not provided or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). 

The record indicates that prior to the initial adjudication of the claim, the Veteran was informed of what evidence is necessary to substantiate a claim for service connection and of his and VA's respective duties for obtaining evidence in a June 2009 VCAA letter. The RO's December 2010 rating decision has since granted service connection for bilateral hearing loss. Under the law, because the original claim has been granted and he has appealed the "downstream" issues concerning the initial rating assigned for the disabilities, the underlying claim have been substantiated and proven. Notice is no longer required because the initial intended purpose of the notice has been served. See Goodwin v. Peake, 22 Vet. App. 128 (2008). Thereafter, once a notice of disagreement (NOD) has been filed contesting the "downstream" issue of the initial rating assigned for the disability, the notice requirements of 38 U.S.C. §§ 5104 and 7105 regarding a rating decision and statement of the case (SOC) control as to the further communications with the appellant, including as to what evidence is necessary to establish a more favorable decision with respect to this downstream element of the claim. Id.; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003 (Dec. 22, 2003). 

A SOC was provided in September 2011, discussing the "downstream" claim for a higher initial rating, citing the applicable statutes and regulations, and providing reasons and bases for not assigning the higher initial rating for the claim on appeal. For these reasons, VA has satisfied its duty to notify. 

VA also fulfilled its duty to assist the Veteran with this claim by obtaining all potentially relevant evidence, which is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). The RO obtained his service treatment records (STRs), VA outpatient treatment records, private treatment records, and arranged for VA compensation examinations in September 2010, April 2014, and November 2015, to assess the etiology and severity of his service-connected bilateral hearing loss, which, as mentioned, is now the determinative downstream issue. 

The video hearing was in compliance with proper procedure as the undersigned explained the issue, focused on the elements necessary to substantiate the claim, and sought to identify any further development that was required to help substantiate them. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conducting of the hearing. Bryant v. Shinseki, 23 Vet. App. 488 (2010). 

The Appeals Management Center (AMC) substantially complied with the Board's March 2014, September 2014, and August 2015 remand directives. The AMC obtained additional treatment records, afforded the Veteran a VA examination to rate the current severity of the Veteran's service-connected bilateral hearing loss, and elicited November 2014 and March 2015 supplemental opinions regarding the effects of the Veteran's bilateral hearing loss on his occupational functioning and daily activities. The AMC also attempted to obtain additional information regarding an April 2011 private audiological evaluation in order to properly evaluate the Veteran's service-connected bilateral hearing loss, but after several attempts, did not receive the necessary information from the private physician. The AMC has substantially complied with the Board's instructions. In summary, the duty to assist has been met. 38 U.S.C.A. § 5103A (West 2014).

The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of the issues have been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2015).

The Merits of the Increased Rating Claim

Disability ratings are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 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. 

The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1 (2015); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to "stage" the ratings, meaning assign different ratings at different times during the rating period to compensate him for times when the disability may have been more severe than at others. The Court has held that consideration of the appropriateness of a staged rating is required for increased rating claim. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 
Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness. Layno v. Brown, 6 Vet. App. 465, 469 (1994).

Once a service-connected hearing disability is established, levels of hearing loss are determined by considering the puretone threshold average and speech discrimination percentage scores, resulting in a Roman numeral designation for hearing loss. 38 C.F.R. §§ 4.85(b), Table VI. Disability ratings are assigned by combining the level of hearing loss in each ear. 38 C.F.R. § 4.85(e), Table VII. See Lendenmann v. Principi, 3 Vet. App. 345 (1992) (assignment of 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). 

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 in each ear based on consideration of speech discrimination as well as puretone threshold averages, unless the examiner certifies that use of the speech discrimination test is not appropriate. In that case, table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average" is used. Table VII, "Percentage Evaluation for Hearing Impairment" is then used to determine the percentage evaluation by combining the Roman numeral of each ear. 38 C.F.R. §§ 3.383, 3.385, 4.85(b). 

If the Veteran has either of two exceptional pattern of hearings impairment, the Roman numeral value is determined using both Table VI and VIa. 38 C.F.R. § 4.86. This method is used if the Veteran's puretone threshold at each of the four specified frequencies is 55 decibels or more, or if the Veteran's puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. Whichever table results in a higher Roman numeral value is used to calculate a disability evaluation using Table VII. Id. The Veteran's puretone thresholds do not meet the standard for an exceptional pattern of hearing, and therefore Table VIa will not be used to calculate his disability. 

The Veteran underwent three VA audiological examinations over the course of this appeal. In September 2010, his puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
20
65
80
LEFT
15
20
15
60
65

The average puretone threshold was 43.75 decibels in the right ear and 40 decibels in the left ear. Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 92 percent in the left ear. The VA examiner diagnosed the Veteran with mild to moderately severe sensorineural hearing loss. 

In April 2014, the Veteran underwent a hearing loss Disability Benefits Questionnaire (DBQ). His puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
35
70
70
LEFT
20
25
25
70
70

The average puretone threshold was 48.75 decibels in the right ear and 47.5 decibels in the left ear. Speech audiometry revealed speech recognition ability of 88 percent in both ears. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss in the frequency ranges of 500 to 4000 Hertz and 6000 Hertz and higher. 

In November 2015, the Veteran was afforded an additional hearing loss DBQ examination. His puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
40
70
75
LEFT
20
20
20
70
75

The average puretone threshold was 50 decibels in the right ear and 46.25 decibels in the left ear. Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 96 percent in the left ear. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss in the frequency ranges of 500 to 400 Hertz and 6000 Hertz and higher. 

VA outpatient treatment records also reflect a VA audiological evaluation conducted in May 2011. His puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
20
60
70
LEFT
15
15
15
60
65

The average puretone threshold was 40 decibels in the right ear and 38.75 decibels in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left ear. The examiner diagnosed the Veteran with bilateral moderate sloping to moderately severe high frequency sensorineural hearing loss in the frequency ranges of 3000 Hertz to 8000 Hertz with excellent speech recognition. 

The Veteran's four completed audiological tests conducted since September 2010 show some fluctuations in the threshold levels. The audiological tests, however, do not indicate that the Veteran is entitled to a compensable rating. Based upon the results of the September 2010 and May 2011 audiological examinations, from Table VI of 38 C.F.R. § 4.85, a Roman numeral I is derived for the right ear and a Roman numeral I is derived for the left ear. Thus, neither is the "better ear." A noncompensable rating is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row I with column I. Similarly, based upon the April 2014 results, a Roman numeral II is derived for the right ear and a Roman numeral II is derived for the left ear. A noncompensable rating is derived from Table VII of 38 C.F.R. § 4.85 by intersecting the applicable rows with the applicable columns. Finally, based upon the November 2015 results, a Roman numeral I is derived for the right ear and a Roman numeral I is derived for the left ear. A noncompensable rating is derived from Table VII of 38 C.F.R. § 4.85 by intersecting the applicable rows with the applicable columns. The intersection point for these categories under Table VII shows that the hearing loss does not exceed the levels contemplated for the currently assigned noncompensable schedular rating. Thus, the evidence does not support a finding of a compensable rating for the Veteran's service-connected bilateral hearing loss.

In support of his claim, the Veteran submitted several private audiological evaluations. In January 2010, the Veteran underwent private audiometric testing. His puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
10
30
65
80
LEFT
10
15
15
60
75

Average puretone thresholds were 46.25 decibels in the right ear and 41.25 decibels in the left ear. Unaided speech discrimination scores were reported as 96 percent in the right ear and 92 percent in the left ear.

In February 2011, the Veteran underwent a second private audiological evaluation. His puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
15
65
75
LEFT
10
10
25
65
75

Average puretone thresholds were 42.5 decibels in the right ear and 43.75 decibels in the left ear. Unaided speech discrimination scores were not reported.

A third private audiological evaluation was conducted in April 2011.  His puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
[unreadable]
20
[unreadable]
70
75
LEFT
25
25
25
70
75

The decibel level in the right ear at 2000 Hertz is unreadable; therefore, an average puretone threshold for the right ear cannot be calculated. The average puretone threshold for the left ear is 48.75 decibels. Unaided speech discrimination scores were reported as 56 percent in the right ear and 88 percent in the left ear. 

For the private audiological evaluations reported above, only the graphic representations of the audiograms were included in the record, with no numeric interpretation provided. However, as the audiometric results are conveyed in a straightforward graph, the charts may be examined to determine the numeric values of the puretone levels for adjudication purposes. See Kelly v. Brown, 7 Vet. App. 471 (1995) (the Court held that it could not interpret the results of an audiograph because interpretation requires a factual finding, which is not the role of the Court in the first instance, and further indicated that the Board was empowered to make such factual findings in the first instance.) 

Additionally, the Board notes that under governing regulations, testing of hearing loss disability for VA rating purposes must meet specific requirements, to include speech discrimination testing in a controlled setting using a Maryland CNC word list. There is no indication in the record that the private audiometric tests was conducted in the manner prescribed. In Savage v. Shinseki, 24 Vet. App. 259 (2011), the Court held that when a private examination report is "unclear" or "not suitable for rating purposes" and the information "reasonably contained in the report otherwise cannot be obtained," More importantly, the Board finds that a remand for clarification of the audiological evaluations is not necessary, as the Board is permitted to interpret the graphical representations contained in audiograms into numerical results (see Kelly, 7 Vet. App. at 474), and based upon the results shown, it is clear that the Veteran still would not warrant a compensable rating under the rating criteria even if they were found to be suitable for rating purposes. 

Specifically, based upon the results of the January 2010 private audiological evaluation, and assuming that the speech discrimination testing was conducted in a controlled setting using a Maryland CNC word list for the audiological evaluation, a Roman numeral I is derived for the right ear and a Roman numeral I is derived for the left ear. A noncompensable rating is derived from Table VII of 38 C.F.R. § 4.85 by intersecting the applicable rows with the applicable columns. The February 2011 private audiological evaluation reflects average puretone thresholds; however, there are no speech discrimination scores recorded. As no speech recognition scores accompany the audiogram, it is not valid for rating purposes. Similarly, the April 2011 private audiological evaluation provides speech discrimination scores, but the decibel level in the right ear at 2000 Hertz is virtually unreadable.  As noted above, pursuant to the August 2015 Board remand, the AMC contacted the April 2011 private audiologist and requested clarification as to whether the Maryland CNC Word List was used and to report the decibel level in the right ear at 2000 Hertz, but no response was received from the audiologist. Therefore, considering the additional audiological evaluation, the evidence does not support a finding of a compensable disability rating for the Veteran's service-connected bilateral hearing loss.

The provisions of 38 C.F.R. § 4.86(a) (Exceptional patterns of hearing impairment) do not apply to the Veteran's service-connected bilateral hearing loss as the audiometric results of all the audiological evaluations reported above do not show puretone thresholds of loss of 55 decibels or greater in the four relevant frequencies for either ear. The provisions of 38 C.F.R. § 4.86(b) are also not applicable as the Veteran's hearing loss is not shown to manifest 30 decibels or less at 1000 Hertz  and 70 decibels or more at 2000 Hertz. 

In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) the Court held that 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. In the September 2010 examination report, the examiner noted that the Veteran's service-connected bilateral hearing loss has significant effects on his occupation. The Veteran reported difficulty hearing and understanding conversational speech at the April 2014 VA examination. In a November 2014 addendum opinion, a VA audiologist concluded that the April 2014 VA audiological results revealed moderately severe high frequency sensorineural hearing loss with good word recognition scores. She explained that the Veteran should be able to function in any position for which he has training and expertise, and advised against working in a hazardous noise environment as his residual hearing must be protected. In a second addendum opinion in March 2015, the same VA audiologist stated that the Veteran's service-connected bilateral hearing loss does not render him unable to secure or follow a substantially gainful occupation for which he has the training and expertise. Finally, the November 2015 examiner noted the Veteran's admission of his hearing loss impacting ordinary conditions of daily, including the ability to work. The Veteran specifically reported being a minister and having difficulty performing his duties and being unable to hear children. 

As noted above, the Veteran's symptoms are not productive of, or consistent with, the criteria for a compensable rating. The Board has duly considered staged ratings, pursuant to Hart, supra, but finds the 0 percent rating assigned is appropriate for the entire rating period. 

There is no basis for referral for consideration of an extra-schedular rating in this case. 38 C.F.R. § 3.321(b)(1) (2015). The Veteran has not presented any evidence that his bilateral hearing loss results in a unique disability that is not addressed by the rating criteria. The Veteran's bilateral hearing loss is evaluated under 38 C.F.R. § 4.85, DC 6100, the criteria of which is found by the Board to specifically contemplate the Veteran's level of disability and symptomatology. As noted above, the Veteran's bilateral hearing loss is manifested by, at worst, Level II hearing loss in the right ear and Level II hearing loss in the left ear. When comparing this disability picture with the symptoms contemplated by the Schedule, the Veteran's symptoms are adequately contemplated by the disability rating for bilateral hearing loss. A rating in excess of the currently assigned rating is provided for certain manifestations of hearing loss, but the medical evidence reflects that those manifestations are not present in this case. The criteria for a noncompensable rating for the Veteran's bilateral hearing loss more than reasonably describes his disability level and symptomatology and, therefore, the currently assigned schedular evaluation is adequate. Thus, there is no basis for referral of the case for consideration of an extraschedular disability evaluation. See Thun v. Peake, 22 Vet. App 111, 115-16 (2008); see also Bagwell v. Brown, 9 Vet. App. 337 (1996). 

Disability ratings for hearing impairment are derived by a mechanical application of the numeric designations assigned after audiological evaluations are rendered. Lendenmann, 3 Vet. App. at 349. There was no indication that the VA audiological evaluations produced test results which were invalid or did not sufficiently address his disability picture, nor is there evidence which suggests that the hearing loss rating criteria are not adequate to address the claim. The clinical findings establish that the preponderance of the evidence is against a compensable rating for the Veteran's bilateral hearing loss disability. Therefore, the benefit-of-the-doubt rule is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 

The Board has considered the Veteran's statements of the severity of his hearing loss, throughout the pendency of this appeal. The Veteran is competent to report matters of which he has personal knowledge, such as difficulty hearing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); 38 C.F.R. § 3.159(a)(2). 

However, the VA medical examinations of record are both comprehensive and addresses the functional loss sustained by the Veteran. The VA compensation examiners have conducted objective audiograms to measure the severity of the Veteran's hearing loss disability. The rating criteria determination is multi-factorial, not just predicated on lay statements and other testimony, rather, all of the relevant medical and other evidence. The Federal Circuit Court has recognized the Board's authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). 

In sum, there is no probative audiological evidence of record to support an initial compensable rating for the Veteran's bilateral hearing loss disability at any time during this appeal period. The preponderance of the evidence is against the Veteran's claim for a higher rating. Consequently, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 


ORDER

An initial compensable disability rating for bilateral hearing loss is denied. 



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs