Citation Nr: 1601354	
Decision Date: 01/13/16    Archive Date: 01/21/16

DOCKET NO.  12-05 248	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to a disability rating in excess of 20 percent for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. D. Bruce, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1960 to May 1962.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

In October 2015, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of that hearing is of record.

In an August 2010 rating decision, the RO increased the assigned disability rating for bilateral hearing loss to 20 percent throughout the period on appeal.  However, because the increased disability rating assigned is not the maximum rating available, the claim remains in appellate status.  See AB v. Brown, 6 Vet. App. 35 (1993); see also Hart v. Mansfield, 21 Vet. App. 505 (2007).  


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

Throughout the period on appeal, the competent, clinical evidence demonstrates that the Veteran's bilateral hearing loss was manifested by no more than Level III hearing impairment in the right ear, and by no more than a Level VIII hearing impairment in the left ear.





CONCLUSION OF LAW

The criteria for a disability rating in excess of 20 percent for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.85, Diagnostic Code 6100, 4.86 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has met all statutory and regulatory notice and duty to assist provisions.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2015); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2015); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  A May 2010 letter satisfied the duty to notify provisions.

With respect to the duty to assist, the Veteran's service treatment records, VA examination reports and medical records, and lay evidence are associated with the record.  Additionally, the Veteran underwent VA examination in connection with his claim in July 2010 and June 2015.  The record demonstrates that the VA examiners reviewed the pertinent evidence and lay statements.  Additionally, the examinations provided sufficient information to rate the service-connected disability on appeal.  38 C.F.R. § 3.159(c)(4); Barr v Nicholson, 21 Vet. App. 303 (2007).  Both the July 2010 and June 2015 VA examiners addressed the functional effects of the Veteran's hearing loss on his activities of daily living.  See Martinak v. Nicholson, 21 Vet. App. 447 (2007).  As such, the Board finds the examinations to be sufficient and adequate for rating purposes.  

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2015) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the October 2015 videoconference hearing, the VLJ noted the elements that were lacking to substantiate the claim of entitlement to an initial disability rating in excess of 20 percent for bilateral hearing loss.  The VLJ asked questions to ascertain the current level of the Veteran's service-connected disability.  The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he understood the elements necessary to substantiate his claim.  Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

There is no indication in the record that any additional evidence relevant to the issue is available and not part of the claims file.  See Pelegrini, 18 Vet. App. 112.  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield, 20 Vet. App. 537; see also Dingess, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).

The Board has thoroughly reviewed all of the evidence in the Veteran's claims file.  Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed).  The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matter decided.  The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed).

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating 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 (2015).  Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule but 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 (2015); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).  

The primary concern for an increased rating for a service-connected disability is the present level of disability.  Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings.  See Hart, 21 Vet. App. 505.

In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are performed.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, and measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second.  

The Rating Schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness.  The horizontal lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  38 C.F.R. § 4.85.  The vertical columns in Table VI represent nine categories of decibel loss based on the pure tone audiometric test.  Id.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate for the average pure tone decibel loss over the four specified frequencies (1000, 2000, 3000, and 4000 Hertz).  The percentage evaluation is found from Table VII by intersecting the horizontal row appropriate for the numeric designation for the ear having the better hearing acuity and the appropriate vertical column to the numeric designation level for the ear having the poorer hearing acuity.  See 38 C.F.R. § 4.85(e).  

The provisions of 38 C.F.R. § 4.86(a) provide that when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 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 will be evaluated separately.  The provisions of 38 C.F.R. § 4.86(b) provide that when the pure tone 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 is the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.

For the period on appeal, the Veteran's service-connected bilateral hearing loss has been assigned a 20 percent disability rating pursuant to Diagnostic Code 6100.  The Veteran asserts that he is entitled to a higher evaluation.  In this case, the relevant, clinical evidence consists of VA audiological examinations performed in July 2010 and June 2015. 

With respect to the July 2010 VA examination, the audiologist diagnosed moderately severe sensorineural hearing loss in the right ear, and severe sensorineural hearing loss in the left ear.  The Veteran reported that he had difficulty communicating and hearing speech.  He stated that he had difficulty hearing instructions, directions and conversations.  Bone conduction and air conduction testing was conducted, and the VA examiner opined that the pure tone thresholds from the air conduction test, which were higher, best reflected the Veteran's level of hearing loss.  Pure tone thresholds, in decibels, were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
35
30
45
80
90
LEFT
35
35
65
100
105

Speech audiometry revealed speech recognition ability of 90 percent in the right ear and of 60 percent in the left ear.  On the basis of the numbers shown above, the Veteran's pure tone threshold average for the right ear was 61.25 decibels.  His pure tone threshold average for the left ear was 76.25 decibels.  Applying 38 C.F.R. § 4.85, Table VI to the July 2010 audiological findings, the Veteran's right ear hearing loss is a Level III impairment based on a pure tone threshold average of 61.25 decibels and a 90 percent speech recognition score.  The Veteran's left ear hearing loss is a Level VII impairment, based on a pure tone threshold average of 76.25 decibels and a 60 percent speech recognition score.  Applying the criteria from Table VI to Table VII, a 20 percent evaluation is derived. 

On VA examination in June 2015, the Veteran reported that he had trouble hearing and understanding words, and had to ask for constant repetitions.  Additionally, he stated that he had difficulty talking on the phone and hearing alarms.  Upon air conduction testing, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
25
55
75
90
LEFT
30
25
70
95
105

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 56 in the left ear.  On the basis of the numbers shown above, the Veteran's pure tone threshold average for the right ear was 61.25 decibels.  His pure tone threshold average for the left ear was 73.75 decibels.  Applying 38 C.F.R. § 4.85, Table VI to the June 2015 audiological findings, the Veteran's right ear hearing loss is a Level II impairment based on a pure tone threshold average of 61.25 decibels and a 94 percent speech recognition score.  The Veteran's left ear hearing loss is a Level VIII impairment under Table VI, based on a pure tone threshold average of 73.75 decibels and a 56 percent speech recognition score.  Thus, applying the criteria from Table VI to Table VII, a 10 percent evaluation is derived. 

As described above, the rating criteria also provides for rating exceptional patterns of hearing impairment under the provisions of 38 C.F.R. § 4.86.  On all of the examinations, pure tone thresholds at each of the four specified frequencies were not shown to be 55 decibels or more, and therefore, evaluation under 38 C.F.R. 
§ 4.86(a) is not warranted.  However, the Veteran's left ear pure tone thresholds were shown in June 2015 to be 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  As such, under 38 C.F.R. § 4.86(b), Table VIA should also be consulted to see if it provides for a higher level of impairment.  Under Table VIA, the Veteran's left ear hearing loss is a Level VI impairment.  As the Veteran's left ear hearing loss is a Level VIII impairment under Table VI, the application of Table VI, rather than Table VIA, remains appropriate. 

At his October 2015 hearing, the Veteran testified that he felt his bilateral hearing loss was worse than it was rated.  He described having difficulty in crowded rooms and with traffic noises.  He reported that he often had to ask people, particularly women, to repeat things.  

Upon review, the Board finds the competent, clinical evidence does not include any audiological examination results demonstrating a higher level of bilateral hearing loss at any time during the pendency of the appeal.  The Board finds the 20 percent disability rating currently assigned for the Veteran's bilateral hearing loss accurately reflects his disability picture, and a higher disability rating is not appropriate.  In reaching this determination, the Board has considered the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable, and disability rating in excess of 20 percent for bilateral hearing loss is denied.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).

Extraschedular Consideration

Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. 

Here, the Board finds the Veteran's disability picture is not so unusual or exceptional in nature as to render the rating assigned for the period inadequate.  The Veteran contends that his bilateral hearing loss impacts the ordinary conditions of his daily life, including his ability to communicate and listen, especially when there is background noise.  Upon review, the Board finds the rating criteria reasonably describe the Veteran's disability level and symptomatology.  The rating criteria contemplate a level of impaired hearing as shown by objective testing, and the evidence does not show that the Veteran experiences any symptomatology not contemplated by the Rating Schedule.  Referral for extraschedular consideration is therefore not warranted, and further inquiry into extraschedular consideration is moot.  See VAOPGCPREC 6-96; see also Thun, 22 Vet. App. 111 (2008). 

The Board notes that under Johnson v. McDonald, 2013-7104, 2014 WL 3562218 (Fed. Cir. Aug. 6, 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced.  However, in this case, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition.  Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.  

Total Disability Rating Based on Individual Unemployability Due to Service-Connected Disability (TDIU)

The Court has held that a TDIU claim is part and parcel of an increased rating claim when raised by the record.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  As a result, the Board has jurisdiction to consider the Veteran's possible entitlement to a TDIU when the issue is raised by assertion or reasonably indicated by the evidence and is predicated, at least in part, on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue.  See VAOPGCPREC 6-96 (Aug. 16, 1996); see also Caffrey v. Brown, 6 Vet. App. 377 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993); EF v. Derwinski, 1 Vet. App. 324 (1991).  Here, the Veteran is retired and testified during his October 2015 hearing that he may be interested in seeking some employment, but that he felt that his hearing loss could prevent him from doing so.  Additionally, he indicated during the June 2015 examination that has run a small business since retiring.  Despite the Veteran's testimony that he feared his hearing loss could prevent him from obtaining some jobs, the Board finds that the Veteran has not asserted that he is totally unemployable as the result of his service-connected bilateral hearing loss, and the clinical evidence does not indicate that his bilateral hearing loss has significantly impacted his ability to work during the pendency of the appeal.  Accordingly, the Board concludes that a claim for entitlement to a TDIU has not been raised.


ORDER

Entitlement to a disability rating in excess of 20 percent for bilateral hearing loss is denied.



____________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs