Citation Nr: 1613217 Decision Date: 03/31/16 Archive Date: 04/07/16 DOCKET NO. 09-47 533 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased (compensable) rating for hearing loss of the right ear. 2. Entitlement to a total disability evaluation based on individual unemployability due to the Veteran's service-connected disorders (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The Veteran served on active duty from October 1969 to January 1972, and from October 19, 1985, to October 20, 1985. These matters come before the Board of Veterans' Appeals, hereinafter the Board, from an October 2008 rating action of the Department of Veterans' Affairs (VA) Regional Office (RO), located in Waco, Texas. In that action, the RO denied entitlement a compensable rating for hearing loss of the right ear. The Veteran provided testimony before the undersigned in December 2011 at the RO. A transcript of the hearing is of record. The issues of entitlement to TDIU, and an extraschedular rating for right ear hearing loss (to include a combined effects extraschedular rating) are REMANDED to the agency of original jurisdiction and are discussed in the REMAND section of the decision. FINDINGS OF FACTS 1. The Veteran has Level V hearing in the right ear and Level I in the left. 2. Service connection is established for the residuals of a closed head injury, rated 50 percent disabling; chondromalacia of the right knee, rated 10 percent disabling; sinusitis, and hearing loss of the right ear. The combined rating is 60 percent. 3. The evidence of record indicates the Veteran has four years of high school. The Veteran's service-connected disorders do not preclude him from obtaining and maintaining gainful employment. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for hearing loss of the right ear have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.104, Diagnostic Code 6100 (2015). 2. The criteria for a total disability rating based on individual unemployability due to service-connected disabilities have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 5121 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 3.340, 3.341, 4.16 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§3.102, 3.156(a), 3.159 and 3.326(a) (2015). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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 should provide in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Adequate VCAA notice in an increased rating claim requires that the claimant be told that to substantiate a claim the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; that should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Vazques-Flores v. Peake, 22 Vet. App. 37 (2008); vacated and remanded in part Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran received required VCAA notice in a letter sent to him in May 2008. The Veteran was afforded miscellaneous VA examinations over the course of this appeal, with the most recent examinations occurring in 2013. The results from the examination are of record and provide the information needed to evaluate the claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The examinations and subsequent reports involved a review of the available medical records and the results of actual testing/examining of the Veteran. The Board therefore finds that the medical information is adequate for ratings purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In addition to dictating objective test results, an audiologist conducting a VA examination must fully describe the functional effects caused by a hearing disability. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The October 2012 examination report includes reports as to functional impairment that are at least as detailed as those found to be adequate in Martinak. VA subsequently obtained opinions discussing the impact of the hearing loss on the ability to work. For the foregoing reasons, the Board finds that VA has fully satisfied the duty to assist. 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) requires that the Veterans Law Judge (VLJ) who chairs a hearing fulfill two duties to comply with the above the 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 hearing, the VLJ elicited testimony as to the essential elements of the claims, to include the symptoms now produced by his hearing loss and his purported inability to obtain gainful employment as a result of his service-connected disorders. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. The hearing focused on the elements necessary to substantiate the claim for service connection, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) (2015) and that the Board can go forward on the claim based on the current record. In March 2012, the Board remanded the claim to the agency of original jurisdiction (AOJ) for the purpose of obtaining additional information. There has been substantial compliance with the remand instructions. The Court has concluded that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The record indicates that the Board, through its instructions in the remand, sought to obtain medical information concerning the severity of the Veteran's hearing loss and whether the Veteran's service-connected disorders prevented him from obtaining and maintaining gainful employment. The Veteran subsequently underwent medical testing and those results have been included in the file for review. The Board thus finds that with regard to the schedular rating for the right ear, the actions taken by the AOJ have fulfilled the Board's instructions. Upon completion of the instructions, the AOJ then issued a Supplemental Statement of the Case (SSOC) that confirmed the VA's previous denial. Based on the foregoing, the Board finds that the AOJ substantially complied with the mandates of the Board's Remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a remand by the Board confers on the Veteran the right to compliance with the remand orders). Therefore, in light of the foregoing, the Board will proceed to review and decide the claim based on the evidence that is of record consistent with 38 C.F.R. Section 3.655 (2015). II. Increased Rating-Hearing Loss of the Right Ear A. Laws and Regulations Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155 (West 2014). Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2 (2015), and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. § 4.3 (2015). If there is a question as to which disability rating to apply to the veteran's disability, the higher rating 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 (2015). In considering the severity of a disability, it is essential to trace the medical history. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2015). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2015); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1 (2015), where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). An evaluation of the level of disability present also includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2014). B. Facts and Discussion At a VA examination in September 2008; the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 70 80 90 LEFT 5 65 60 70 The average loss was 65 decibels on the right ear and 50 decibels on the left. Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 96 percent on the left. During a December 2011 audiological examination at Diagnostic Clinic of Longview (Longview), the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 35 95 105 100 LEFT 15 70 75 70 Speech audiometry revealed speech recognition ability was 76 percent in the right ear. It was noted that this was based on a recorded "NU-6" list. At his hearing, the Veteran testified that his right ear hearing had worsened since the last examination in 2008. He reported increasing difficulty understanding conversations. He reported that the hearing in his left ear was "pretty good," and he was still able to hear "pretty well." A May 2012 test at the same facility revealed the following results: HERTZ 1000 2000 3000 4000 RIGHT 35 50 80 70 LEFT 20 50 80 70 Word discrimination using the recorded "NU-6" word list was 85 percent. At the VA examination in October 2012, the Veteran reported an increase in right ear hearing loss and his belief that the hearing loss and tinnitus caused him to be unemployable. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 70 90 90 LEFT 15 65 60 65 Speech audiometry revealed speech recognition ability of 100 percent for the left ear and 94 percent in the right ear. The average pure tone thresholds, in decibels, for the right ear was 68.75 and for the left ear was 51.25. The examiner found that there were significant effects on the Veteran's occupation and that work problems might include difficulty with conversational speech, especially in adverse listening conditions; but that there were no effects on daily activities. The private audiological findings with respect to the Veteran's hearing were not conducted in accordance with VA requirements, in that they did not use the Maryland CNC word list. See 38 C.F.R. § 4.85. Accordingly, they do not provide a basis for a compensable rating To evaluate the degree of disability from defective hearing, the VA Schedule for Rating Disabilities (Rating Schedule) establishes eleven auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. §§ 4.85 and 4.87, Diagnostic Code 6100; Table VI (2015); 38 C.F.R. § 4.85(b) and (e) (2015). See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The horizontal rows represent the ear having the better hearing, while the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e) (2015). Table VII was amended in that hearing loss is now rated under a single code, that of Diagnostic Code 6100, regardless of the percentage of disability. See 64 Fed. Reg. 25204 (May 11, 1999). Compensation is payable for the combination of service-connected and non-service-connected hearing loss will be rated as if both disabilities are service connected, provided the hearing loss in the service connected ear is ratable at 10 percent or more and the hearing loss in the other ear meets the definition of hearing loss disability in 38 C.F.R. § 3.385 (2015). 38 C.F.R. § 3.383(a)(3) (2015). The hearing loss in the Veteran's non-service-connected ear does meet the thresholds specified in 38 C.F.R. § 3.385; but the hearing loss in the service connected right ear does not meet the criteria for a 10 percent rating; hence, the non-service-connected ear is not rated as if service connected. As noted below, even if rated as service connected, the left ear hearing loss would not support a compensable rating. Applying the above test results to Table VI of the Rating Schedule, the results reported in October 2012 would equate to level II loss in the right ear and level I loss in the non-service connected left ear. When the formula in Table VII for determining the disability evaluation is applied to these numeric designations, the result is 0 percent. 38 C.F.R. § 4.85, Table VII (2015). The results from the 2008 examination were better than those reported in 2012, and would not support a compensable rating. The regulations also provide for evaluating veterans with certain patterns of hearing impairment that cannot always be accurately assessed under 38 C.F.R. § 4.85 (2015) because the speech discrimination test may not reflect the severity of communicative functioning that these veterans experience. See 64 Fed. Reg. 25203 (May 11, 1999). The first provision, that of 38 C.F.R. § 4.86(a) (2015), provides that if pure tone thresholds in each of the four frequencies of 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more, an evaluation can be based either on Table VI or Table VIa, whichever results in a higher evaluation. Because the Veteran only has three frequencies measured at 55 decibels or greater, this provision does not apply. The provisions of 38 C.F.R. § 4.86(b) (2015), provide that when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa, whichever results in the higher numeral, and that numeral will then be elevated to the next higher Roman numeral. Id. This provision does apply because the Veteran had hearing loss in the right ear of less than 30 decibels at 1000 Hertz; and a hearing loss of 70 decibels at 2000 Hertz on both VA examinations. This provision would not apply to the left ear, even if considered service connected, because there was less than a 70 decibel loss at 2000 Hertz. This would mean that the Veteran's right ear's numeric designation would be Roman Numeral V with the left ear's numeric designation Roman Numeral I. Applying these two readings to the chart found at Table VII produces a zero or noncompensable rating. The amended regulations changed the title of Table VIa from "Average Puretone Decibel Loss" to "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average." See 64 Fed. Reg. 25202 (May 11, 1999). In this case, the mandated mechanical application of the Rating Schedule to the numeric designations assigned based on the reported audiometric evaluation does not warrant an evaluation more than previously assigned by the RO. Accordingly, the Board concludes that a compensable evaluation is not supported by the record and an increased evaluation is not warranted at any time during the pendency of the appeal. In determining whether a higher rating is warranted for a disease or disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Although the Board sympathizes with the Veteran's difficulties due to his hearing loss, the Board is constrained to abide by VA regulations. In light of the above, the Board finds that the evidence is against a compensable schedular rating for right ear hearing loss. C. Extraschedular Rating The Board has also considered whether the Veteran is entitled to an extraschedular evaluation. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. 38 C.F.R. § 3.321(b) (2015). 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 claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant'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 an Veteran'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 extraschedular rating. If any prong of the Thune test is not met, referral is not required. See Yancy v. McDonald, No. 14-3390 (Feb. 26, 2016). With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the Veteran's service-connected hearing loss of the right ear is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. In short, there is nothing in the record to indicate that the service-connected disability on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) (2015) is not warranted. ORDER Entitlement to an increased (compensable) schedular rating for hearing loss of the right ear is denied. REMAND In its previous remand the Board instructed that if there were any periods on appeal when the Veteran was unemployed and did not meet the percentage requirements for TDIU, the claim should be referred to the Director of VA's Compensation and Pension Service (C&P) for adjudication in accordance with 38 C.F.R. § 4.16(b) (2015). Although the Veteran has reportedly been unemployed since 2000 and does not currently meet the percentage requirements for TDIU, the referral was not made. The Veteran has a right to compliance with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). This case also raises the question of entitlement to an extraschedular rating based on the combined effects of the Veteran's service connected disabilities. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). The Board is deferring consideration of the question of entitlement to an extraschedular rating for right ear hearing loss because the TDIU development could have an impact on the extraschedular question. Brambley v. Principi, 17 Vet App 20 (2003). Accordingly, the case is REMANDED for the following: 1. Refer the issue of entitlement to TDIU and an extraschedular combined effects rating to the Director of C&P for adjudication in accordance with 38 C.F.R. §§ 3.321(b); 4.16(b) (2015). 2. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then return the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs