Citation Nr: 1601765	
Decision Date: 01/14/16    Archive Date: 01/21/16

DOCKET NO.  08-32 095	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to an increased rating for bilateral hearing loss.


REPRESENTATION

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


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Jeremy J. Olsen, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Army from February 1984 to March 2006. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision issued by the RO in Muskogee, Oklahoma.

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

In August 2014 and July 2015, the Board remanded the Veteran's claim for further development.  As will be discussed below, such development was accomplished and the claim now returns for further appellate review. 

This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless, electronic claims processing systems.


FINDING OF FACT

At all times pertinent to the appeal, the Veteran's bilateral hearing loss was manifested, at worst, by Level I hearing impairment in the right ear and Level IX in the left ear.


CONCLUSION OF LAW

The criteria for a compensable rating for bilateral hearing loss are not met.  38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 (2015).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). 

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. 

In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009).

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. 

The Board finds that VA has satisfied its duty to notify under the VCAA.  Specifically, a September 2010 letter, sent prior to the initial unfavorable decision issued in January 2012, advised the Veteran of the evidence and information necessary to substantiate his increased rating claim as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, such letter advised him of the information and evidence necessary to establish an effective date in accordance with Dingess/Hartman, supra.

Relevant to the duty to assist, the Veteran was provided VA audiometric examinations in November 2010, March 2012 and October 2015 which, as explained below, contain the necessary audiometric findings to determine the proper compensation for his service-connected bilateral hearing loss.  The Board finds that the examinations are adequate to evaluate the Veteran's service-connected bilateral hearing loss as they include an interview with the Veteran, a review of the record, and a full audiological examination, addressing the relevant rating criteria.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). 

The Board also notes that, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the 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.  The Board observes that each of the examination reports include the examiners' comments regarding the functional effect of the Veteran's bilateral hearing loss.  Therefore, the Board finds that the examination reports of record are adequate to adjudicate the Veteran's increased rating claim and no further examination is necessary.

Additionally, the development requested in the August 2014 and July 2015 remands has been accomplished to the extent possible.  In this regard, in the August 2014 remand, the AOJ was instructed to schedule the Veteran for a Board hearing, as per his request.  As noted in the Introduction, such hearing was held in May 2015.  In the July 2015 Board remand, the AOJ was instructed to obtain any records not then on file, to include a possible audiometric test performed just prior to the hearing.  The AOJ was also instructed to schedule the Veteran for an audiometric examination, as he had indicated during the Board hearing that his hearing loss had worsened.  Subsequently, updated VA treatment records were obtained.  Those updated records showed audiology treatment notes from the referenced time frame, but no formal testing of the Veteran's hearing. In addition, in October 2015, the Veteran underwent a VA audiometric examination.  Therefore, the Board finds that there has been substantial compliance with the instructions of its July 2015 remand.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). 

Furthermore and as noted in the Introduction, in May 2015, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (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 May 2015 hearing, the undersigned noted the issues then on appeal.  Additionally, the undersigned also solicited information from the Veteran as to the existence of any potentially relevant evidence that had not been obtained.  Therefore, not only were the issues "explained . . . in terms of the scope of the claims for benefits," but "the outstanding issues material to substantiating the claims," were also fully explained.  See Bryant, 23 Vet. App. at 497.  Moreover, as a result of the Veteran's testimony, the Board determined that further evidentiary development was necessary, to include providing him with further VA examination, and a remand requesting such development was promulgated.  As noted in the preceding paragraphs, there has been substantial compliance with the directives of this remand and, as such, nothing gives rise to the possibility that evidence has been overlooked with regard to the claim remaining on appeal.  Therefore, the Board finds that, consistent with Bryant, there has been compliance with the duties set forth in 38 C.F.R. § 3.103(c)(2).

Thus, the Board finds that VA has fully satisfied the duty to notify and assist with respect to the issue adjudicated herein, and that additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose with respect to such issues.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided).  VA has satisfied its duty to inform and assist the Veteran at every stage as to the issues decided herein, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding with respect to such issues.  Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of the claim adjudicated herein.

II. Analysis

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the 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.  Otherwise the lower rating will be assigned.  38 C.F.R. 
§ 4.7.  All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. 
§ 4.3.

Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate.  Fenderson v. West, 12 Vet. App. 119 (1999). 

In evaluating 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 (zero percent) to a maximum 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests (Maryland CNC) in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second (Hertz).  The rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a puretone audiometry test.  Under 38 C.F.R. §§ 4.85, the vertical lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  The horizontal columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss.

The percentage evaluation is determined from Table VII (in 38 C.F.R. § 4.85 ) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation for the ear having the poorer hearing acuity.  In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average puretone decibel loss are met. 

The provisions of 38 C.F.R. § 4.86(a) pertaining to exceptional patterns of hearing impairment provide that, when the puretone 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) pertaining to exceptional patterns of hearing impairment provide that, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.  As demonstrated below, the Veteran has demonstrated an exceptional pattern of hearing impairment in his left ear at all times pertinent to his appeal, and is rated accordingly.

A VA contract examination dated November 2010 noted the Veteran had difficulty understanding conversational speech in certain environments.  The Veteran also indicated that he experienced ringing in both ears and had trouble hearing.  An audiogram revealed the following puretone thresholds, in decibels: 


HERTZ

1000
2000
3000
4000
AVERAGE
RIGHT
20
35
45
40
35
LEFT
60
55
65
65
61.25

Speech recognition scores based on the Maryland CNC were 94 percent in the right ear and 56 percent in the left ear.  These audiometry test results equate to Level I hearing in the right ear, and Level VII hearing in the left, under Table VI. 38 C.F.R. § 4.85.  However, based on the criteria of 38 C.F.R. § 4.86(a), these test results demonstrate an exceptional pattern of hearing loss in the left ear.  As a result, when using Table VIa, the test results equate to Level IV hearing the left ear.  The criteria for determining an exceptional pattern of hearing loss require the use of the higher numeral when evaluating a veteran's hearing loss.  Id.  Here, that is VII, the number determined by the use of Table VI.  Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in the right ear and Level VII hearing in the left ear results in a noncompensable rating.  38 C.F.R. § 4.85. 

The Board notes that the November 2010 examiner repeated the speech recognition test, which resulted in a score of 64 percent in the Veteran's left ear.  However, the improved score does not alter the finding that the Veteran's hearing is at a noncompensable level, as using the new score results in left ear hearing at Level VI, which is less than the Level VII hearing used above.  Even if the Board were able to use the updated score, when it is combined with Level I hearing in the right ear under Table VII, Level VI hearing would still result in a noncompensable rating. 

At the March 2012 VA examination, the VA examiner noted that the Veteran was not able to communicate over earpieces at work.  The Veteran also explained that his left ear hearing loss made it difficult for him to locate sounds when spoken to from his left side. 

Audiological test results revealed the following puretone thresholds, in decibels: 


HERTZ

1000
2000
3000
4000
AVERAGE
RIGHT
10
35
45
40
32
LEFT
60
60
65
70
64

Speech recognition scores based on the Maryland CNC were 100 percent in the right ear and 40 percent in the left ear.  These audiometry test results equate to Level I hearing in the right ear, and Level IX hearing in the left, under Table VI. 38 C.F.R. § 4.85.  When taking into consideration the criteria of 38 C.F.R. § 4.86(a), these test results demonstrate an exceptional pattern of hearing loss in the left ear.  As a result, when using Table VIa, the test results equate to Level V hearing the left ear.  As noted above, the criteria for determining an exceptional pattern of hearing loss require the use of the higher numeral when evaluating a veteran's hearing loss.  Id.  Here, that is IX, the number determined by the use of Table VI.  Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in the right ear and Level IX hearing in the left ear results in a noncompensable rating.  38 C.F.R. § 4.85.

At the August 2015VA examination, the VA examiner noted the Veteran's difficulty understanding others, to include the Veteran being unable to tell if someone was talking to him, unless he was looking directly at them.  The Veteran experienced problems at work due to his hearing loss.  He also described not being able to hear his family members, and indicated that his wife had problems communicating with him, due to his hearing loss.

Audiological test results revealed the following puretone thresholds, in decibels: 

HERTZ

1000
2000
3000
4000
AVERAGE
RIGHT
20
45
50
45
40
LEFT
70
70
65
70
69

Speech recognition scores based on the Maryland CNC were 96 percent in the right ear and 42 percent in the left ear.  These audiometry test results equate to Level I hearing in the right ear, and Level IX hearing in the left, under Table VI.  38 C.F.R. § 4.85.  Under the criteria of 38 C.F.R. § 4.86(a), these test results demonstrate an exceptional pattern of hearing loss in the left ear.  As a result, when using Table VIa, the test results equate to Level V hearing the left ear.  Again, the criteria for determining an exceptional pattern of hearing loss require the use of the higher numeral when evaluating a veteran's hearing loss.  Id.  Here, that is IX, the number determined by the use of Table VI.  Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in the right ear and Level IX hearing in the left ear results in a noncompensable rating.  38 C.F.R. § 4.85.

Based on the foregoing, the Board finds that, for the entire period on appeal, the Veteran had no worse than Level I hearing in his right ear and Level XI in his left.  As such, he is entitled to a noncompensable rating for his service-connected bilateral hearing loss.  The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's hearing loss; however, the Board finds that his symptomatology has been stable throughout the appeal period.  Therefore, assigning additional stage ratings for such disability is not warranted. 

In making this determination, the Board has considered the Veteran's statements with respect to his hearing loss.  In this regard, the Board again observes that the VA examiners noted the Veteran's current employment and social functions would be somewhat adversely affected by his difficulty hearing conversational speech, in that he asks people such as his wife to repeat themselves and misunderstands what is said, and has difficulty understanding others when spoken to.  However, to the extent that the Veteran contends that his hearing loss is more severe than currently evaluated, the Board observes that the Veteran, while competent to report symptoms associated with his hearing loss, to include difficulty hearing and understanding in a variety of situations, and the impact such has on his daily life and employment, is not competent to report that his hearing acuity is of sufficient severity to warrant a higher evaluation under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to have.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). 

Despite the foregoing, the Board acknowledges the Veteran's reports of his symptoms of hearing loss and the impact such has on his daily life and employment.  However, even after considering such contentions, the Board finds that the criteria for a compensable evaluation are not met at any point pertinent to his appeal.  See Lendenmann, supra (assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluation are rendered).

Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration.  An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable.  38 C.F.R. § 3.321(b)(1).

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.32 are applied.  Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under 
§ 3.321 is a three-step inquiry.  First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.

Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the AOJ or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization."  Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto 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 extra-schedular rating.  Id. 

The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected hearing loss with the established criteria found in the rating schedule.  The Board finds that the Veteran's hearing loss symptomatology is fully addressed by the rating criteria under which such disability is rated.  In this regard, all of the Veteran's hearing loss symptomatology (such as needing the having to turn his head towards a speaker to hear him/her better and having difficulty conversing with his spouse) is contemplated by the rating criteria. 

As discussed above, the Board notes 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.  Martinak, supra.  As noted above, the VA examiners described the various effects of the Veteran's hearing loss.  There are no additional symptoms of his bilateral hearing loss that are not addressed by the rating schedule.  Notably, 38 C.F.R. §§ 4.85 and 4.86 adequately contemplate any functional loss due to hearing impairment.  Therefore, the Board finds that the Veteran's hearing difficulties are adequately contemplated by the Rating Schedule.  As the Veteran's disability picture is contemplated by the Rating Schedule, the threshold issue under Thun has not been met and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary.  Nevertheless, the Board observes that no hospitalization or interference with employment has been noted.  The Veteran has not reported being currently unemployed nor being unable to work due to his bilateral hearing loss. 

Further, the Board notes that, pursuant to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where evaluation of the individual conditions fails to capture all the symptoms associated with service-connected disabilities experienced.  However, in this case, as the appeal does not involve evaluation of multiple service-connected disabilities, further discussion of Johnson is not necessary.

In short, the evidence does not support the proposition that the Veteran's service-connected bilateral hearing loss disability presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards to warrant the assignment of an extraschedular rating under 38 C.F.R. 
§ 3.321(b)(1).  Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted.  Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996).

In Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the Court held that when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a total disability rating based on individual unemployability (TDIU) will be considered "part and parcel" of the claim for benefits for the underlying disability.  In the instant case, the Veteran filed a formal claim for TDIU in May 2015, but then withdrew that claim in September 2015.  Since then, the Veteran has not submitted evidence of unemployability due to his bilateral hearing loss.  Moreover, the clinical evidence of record fails to indicate that the Veteran's bilateral hearing loss renders him unemployable.  Therefore, the question of entitlement to a TDIU has not been raised.

For the foregoing reasons, the Board finds that the claim for an increased rating for hearing loss must be denied.  In reaching this conclusion, the Board has considered the benefit-of-the-doubt rule, but finds that such does not apply, as the preponderance of the evidence is against a higher rating in this case.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Entitlement to an increased rating for bilateral hearing loss is denied.




____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs