Citation Nr: 1606364	
Decision Date: 02/19/16    Archive Date: 03/01/16

DOCKET NO.  14-27 629	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
 in Nashville, Tennessee


THE ISSUE

Entitlement to an increased rating in excess of 10 percent for bilateral sensorineural hearing loss.


ATTORNEY FOR THE BOARD

B. T. Callahan, Associate Counsel



INTRODUCTION

The Veteran served on active duty from November 1966 to October 1968.  

This appeal to the Board of Veterans' Appeals (Board) arose from an April 2013 rating decision in which the RO increased the Veteran's disability rating for bilateral hearing loss to 10 percent, effective November 2, 2012.  In April 2013, the Veteran filed a notice of disagreement (NOD), and a statement of the case (SOC) was issued in June 2014.  The Veteran then filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in July 2014.  

The Veteran's paper claims file has been rebuilt.  The Veteran also has a paperless, electronic file in the Virtual VA claims processing system.  The electronic file contains documents which are either inconsequential to this appeal or duplicative of evidence contained in the paper claims file.  


FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished.

2.  Pertinent to the November 2011 claim for increase, audiometric testing has revealed Level III hearing in the left ear, and Level VI hearing in the right ear.  

3.  At no point pertinent to the current claim has the Veteran's bilateral hearing loss been shown to be so exceptional as to warrant an extra-schedular rating, nor has a claim for TDIU due to his hearing loss been reasonably raised in this case.


CONCLUSION OF LAW

The criteria for a rating in excess of 10 percent 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, 3.321, 4.1, 4.3, 4.7, 4.85, 4.86 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Due Process Considerations

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015).

Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing.  See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)).

As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). 

In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

For claims 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).

VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the AOJ (here, the RO).  Id.; Pelegrini, 18 Vet. App. at 112.  See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id.

In a pre-rating February 2013 letter, the AOJ provided notice to the Veteran explaining what information and evidence was needed to substantiate a claim for an increased rating.  This letter also informed the Veteran of what information and evidence would be obtained by the VA and what evidence the Veteran was expected to submit.  The AOJ also provided the Veteran with general information pertaining to the assignment of disability ratings and effective dates, including the types of evidence that impacts such determinations.  This letter-which was provided prior to the April 2013 rating decision on appeal-meets the VCAA's timing and content of notice requirements.

Pertinent to VA's duty to assist, the record also reflects that the VA has undertaken e appropriate action s to obtain all relevant evidence pertinent to this claim.  This includes affording the Veteran a complete audiology examination to obtain appropriate testing results for evaluation of his disability.  Also of record and considered in connection with the appeal are written statements provided by the Veteran, as well as by his wife and friend, on his behalf.  The Board finds that no further action on this claim this claim, prior to appellate consideration, is required.  

Notably, the record contains nothing to suggest that the Veteran's condition has appreciably worsened since the March 2013 examination.   Furthermore, the Veteran has not identified any outstanding private records  which would be relevant to this decision.  Accordingly, as the Board finds no evidence to suggest that additional development of the record would be useful in substantiating this claim, the assistance requirements of the VCAA have o been satisfied in this case.  

In summary, the duties imposed by the VCAA have been considered and satisfied.  The Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim.  Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal.  Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture.  See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error).  See also ATD Corp. v. Lydall, Inc. , 159 F.3d 534, 549 (Fed. Cir. 1998).

II. Analysis

Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examination.  Evaluations of hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000; 2,000; 3,000; and 4,000 cycles per second.  To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness.  38 C.F.R. § 4.85, Diagnostic Code 6100.  Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85 .


Exceptional patterns of hearing impairment are addressed in 38 C.F.R. § 4.86 .  When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000) 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. 38 C.F.R. § 4.86(a).

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 in the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(b).

The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation.  See Hart v. Mansfield, 21 Vet. App. 505, 509-10   (2007).  The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

Pertinent to the current claim, the Veteran underwent a VA audiology examination in March 2013.  During this examination, the Veteran reported that he has difficulty hearing others, particularly with the presence of background noise.  The Veteran also indicated that he had difficulty hearing people at a distance or hearing the television at home.  The record also contains similar reports of functional impairment from the Veteran's spouse and friend.

On audiometric testing, pure tone thresholds, in decibels, were as follows:



HERTZ




1000
2000
3000
4000
RIGHT
40
65
90
100
LEFT
15
50
95
105

Pure tone threshold averages were 74 decibels (dB) in the right ear and 66 dB in the left ear.  Speech discrimination scores were 70 percent in the right ear and 84 percent in the left ear.  

Applying the methodology for evaluating hearing loss prescribed in 38 C.F.R. § 4.85, testing results obtained on  March 2013 examination reveal Level VI hearing in the right ear and Level III hearing in the left ear.  Application of Table VII to these findings results in a 10 percent rating for the Veteran's bilateral hearing loss.  As an exceptional pattern of hearing loss was not demonstrated, the methodology prescribed in 38 C.F.R. § 4.86 is not applicable in this case.  Thus, the assigned 10 percent rating is warranted.

In reaching this conclusion, the Board emphasizes that the assignment of schedular disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained, and the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  In other words, the Board is bound by law to apply VA's rating schedule based on the audiometry results.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  

Additionally, the Board finds that at no point pertinent has the disability under consideration been shown to be so exceptional or unusual to warrant the assignment of any higher ratings on an extra-schedular basis.  See 38 C.F.R. § 3.321(b)(1)

There is a three-step analysis for determining whether an extra-schedular rating is appropriate.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c).  Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required.  See VAOGCPREC 6-96 (Aug. 16, 1996).  See also Thun, supra.

If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization).  38 C.F.R. § 3.321(b)(1).  If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Thun, supra.

In this case, the functional limitations alleged by the Veteran, his spouse, and his personal friend all relate to the Veteran's diminished ability to hear in various settings.  Such appears to be precisely what is measured by audiometric and speech discrimination testing, and is the type of impairment experienced by members of the general population with hearing loss.

Given the mechanical nature of deriving ratings for hearing loss, however, these assertions suggest that the schedular criteria may not be adequate to evaluate the Veteran's bilateral hearing loss disability.  Nonetheless, even in considering the Veteran's assertions, the Board finds that such assertions, alone, do not support a finding of exceptional or unusual factors associated with the disability, such as marked interference with employment.  Although the Veteran has reported that his hearing loss complicates his use of the telephone in conducting business, he has still been able to continue to satisfactorily operate his business.  There also is no evidence of frequent treatment or evaluation of hearing loss-much less, repeated hospitalization-or evidence that the disability is otherwise exceptional or unusual.  

The Board further 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, the Veteran's bilateral hearing loss is appropriately rated as a single disability.  As the claim on appeal does not involve the evaluation of multiple disabilities, the holding of Johnson is inapposite here.

Under these circumstances, the Board concludes that the requirements for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) are not met, and that referral of the claim for extra-schedular consideration is not warranted.  See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

As a final point, the Board further notes that if the claimant, or the record, reasonably raises the question of whether the Veteran is unemployable due to the disability for which a higher rating is sought, then part and parcel to that claim for a higher rating is the matter of whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  In this case, however, there is no evidence to suggest that the Veteran has actually, or effectively, been rendered unable to obtain, or retain, gainful employment due to his hearing loss.  In fact, as noted above, the record (to include the Veteran's April 2013 NOD) contains evidence that the Veteran continues to operate his own business.  As such, no claim for a TDIU due to hearing loss has been raised in conjunction with the increased rating claim on appeal, and need not be addressed herein. 

For all the foregoing reasons, the Board finds that, there is no basis for staged rating for the Veteran's disability, pursuant to Hart, and that the claim for a higher rating must be denied.  In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, given the mechanical method of deriving schedular ratings for hearing loss, and the determinations made with respect to extra-schedular and TDIU consideration, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

An increased rating in excess of 10 percent for bilateral sensorineural hearing loss is denied.


____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs