Citation Nr: 1613854	
Decision Date: 04/05/16    Archive Date: 04/13/16

DOCKET NO.  09-36 463	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUES

1.  Entitlement to a compensable rating for bilateral hearing loss.

2.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include depression, anxiety, posttraumatic stress disorder (PTSD), and acarophobia.


REPRESENTATION

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


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

A. Barner, Counsel


INTRODUCTION

The Veteran served on active duty from July 1968 to July 1970. 

This appeal comes before the Board of Veterans' Appeals (Board) from a June 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. 

The Veteran testified before the Board sitting at the RO in July 2012.  A transcript of the hearing is associated with the claims file.

The issue of whether there is new and material evidence to reopen a claim of entitlement to service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

The service-connected bilateral hearing loss disability is not shown to be manifested by worse than level II hearing in either ear.


CONCLUSION OF LAW

The criteria for a compensable rating for a bilateral hearing loss disability have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.159, 3.321, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist 

As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  Consequently, discussion of VA's compliance with the notice requirements of the Veterans Claims Assistance Act of 2000 would serve no useful purpose.  

VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations.  There is no evidence that additional records have yet to be requested, or that additional examinations are in order.  The February 2015 VA audiological examination is adequate because it is based on consideration of the Veteran's prior medical history and examinations, and describes the disability in sufficient detail to allow the Board to make a fully informed evaluation.  Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).  There was substantial compliance with the Board's November 2014 remand.  Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).  
 
For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements.  The claim of entitlement to a compensable rating for bilateral hearing loss is thus ready to be considered on the merits.

Increased Rating

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 their residual conditions in civil occupations.  Separate Diagnostic Codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
 
If there is a question of 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.  The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not.  Fenderson v West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

Bilateral Hearing Loss

Evaluations of defective hearing range from noncompensable to 100 percent based on the 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 of 1000, 2000, 3000, and 4000 cycles per second. 
 
To evaluate the degree of disability due to a hearing loss the provisions of 38 C.F.R. § 4.85 establish eleven auditory acuity levels from Level I for essentially normal acuity to Level XI for profound deafness.  Tables VI and VII as set forth in 38 C.F.R. § 4.85 are used to calculate the rating to be assigned.  
 
"[T]he 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."  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

The Veteran's bilateral hearing loss is rated as noncompensably disabling since July 1984.  The RO received the Veteran's claim for an increased rating in November 2007.  Earlier treatment records showed that the Veteran had a history of organic ear problems and corrective surgery.  The most recent hearing acuity examinations prior to the claim were in May and June 1999.  VA outpatient records showed periodic follow up ear examinations and the use of hearing aids but without testing sufficient for rating purposes.  In March 2008, comparison to a 2004 audiogram noted decibel drops from 10 to 15 decibels at varying thresholds for the Veteran's hearing loss, with word recognition scores of 100 percent in the right ear and 92 percent in the left ear.  

An April 2008 VA examination included an audiogram that revealed pure tone thresholds, in decibels, as follows:




HERTZ



1000
2000
3000
4000
AVG
Right
45
20
35
60
40
Left
40
35
65
70
52.5

Speech recognition scores were of 100 percent in the right ear and 92 percent in the left ear.  

A July 2009 audiogram revealed pure tone thresholds, in decibels, as follows:




HERTZ



1000
2000
3000
4000
AVG
Right
40
25
40
60
41.25
Left
40
40
65
70
53.75

Maryland CNC revealed speech discrimination scores of 96 percent in the right ear, and in the left ear.  

August 2009 audiological results, in pure tone thresholds, were as follows:




HERTZ



1000
2000
3000
4000
AVG
Right
45
35
50
65
48.75
Left
45
45
65
75
57.5

Speech discrimination was 88 percent in the right ear and 92 percent in the left ear.  There was mild to severe sensorineural hearing loss in the right ear, with an air bone gap at 4000 Hertz only.  In the left ear there was moderate to severe mixed hearing loss, and the eardrum had a small perforation caused by a previous tube insertion.

Although the Veteran was afforded a September 2012 VA examination, the examiner indicated that the audiological testing results were not valid for rating purposes because the Veteran had a medical condition of the right ear at that time, which would improve with treatment.  The Veteran at that time reported difficulty understanding speech to include over the phone, when watching television or with general conversation.  He reported that he needed to see the speaker's face when listening.  

VA treatment records from 2009 indicated that the Veteran experienced right ear mild to severe sensorineural hearing loss with slight conductive component, and left ear moderately severe to mild to moderately severe hearing loss with conductive components.  In 2010 show the Veteran's pure tone thresholds showed mild to moderately severe mixed hearing loss, and he received hearing aids for amplification.  The Veteran reported that he heard too much road noise.  

In September 2009 the Veteran emphasized that audiological data from 2008 to 2009 showed that his hearing loss had worsened.  He also indicated that his hearing made it especially difficult to hear on the telephone, and that he wore hearing aids because background noise interfered with his ability to understand what was being said by obscuring sounds he needed to hear.  A December 2009 statement from the Veteran's sister discussed how she had to repeat much of what she said to the Veteran due to his difficulty hearing.  

In a July 2012 Board hearing, the Veteran reported that his loss of hearing acuity had become more severe in the past two years and that he had received new hearing aids from a VA clinic during that period of time.  

As such, in August 2012 the Board remanded the claim in order to obtain another VA examination.  An October 2012 examination of the ears and a January 2013 audiology examination were conducted.  An audiogram showed pure tone thresholds, in decibels, as follows:




HERTZ



1000
2000
3000
4000
AVG
Right
50
35
55
70
52.5
Left
45
45
65
75
57.5

Speech discrimination test scores were 96 percent in the right ear and 96 percent in the left ear.  The Veteran reported that his hearing loss affected his daily life in that even with the help of hearing aids; it was difficult to hear with background noise.  The examiner concluded that the Veteran's hearing loss would likely cause him to misunderstand words in conversation frequently and more so in the presence of background noise, in group settings, or when the speaker's back was turned.  

Pursuant to a November 2014 Board remand, the Veteran was afforded another VA examination in March 2015.  Audiogram showed pure tone thresholds, in decibels, as follows:




HERTZ



1000
2000
3000
4000
AVG
Right
50
50
70
75
61.25
Left
50
55
70
75
62.50

Speech discrimination test scores were 96 percent in each ear.  The Veteran described the functional effects of his hearing loss in explaining his situation of greatest difficulty was when there was background noise.  

Applying the values of the audiological examinations to the rating criteria results in a numeric designation of no worse than Level II in each ear.  See 38 C.F.R. § 4.85, Table VI.  Application of this level of hearing impairment to Table VII at 38 C.F.R. § 4.85 produces a noncompensable rating.  It bears repeating that the 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.
 
Even after considering the Veteran and his sister's reports as to the effects of the hearing loss on the Veteran's daily life, to include difficulty hearing others such that he often asks for a statement to be repeated or difficulty hearing with background noise present, the evidence shows that the rating criteria for a compensable rating are not met. 
 
Accordingly, the Board finds that the audiometric findings preponderate against entitlement to a compensable rating.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). 
 
Staged ratings are not appropriate in light of the evidence and the law governing this rating.
 
Extraschedular Consideration 
 
If the criteria reasonably describe the disability level and symptomatology, then the disability picture is encompassed by the Rating Schedule, and the assigned scheduler ratings are, therefore, adequate and referral for an extraschedular rating is not required.  Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).
 
Here, the rating criteria reasonably describe the disability level of the hearing loss, symptomatology.  Such symptomatology includes difficulty hearing.  In other words, the Veteran does not experience any symptomatology not already encompassed in the Rating Schedule.  Therefore referral for extraschedular consideration for the service-connected residuals of hearing loss is not warranted under 38 C.F.R. § 3.321(b)(1). 

ORDER

Entitlement to a compensable rating for bilateral hearing loss is denied.  


REMAND

New and Material Evidence for entitlement to service connection for an acquired psychiatric disorder, to include PTSD

In November 2014 the Board remanded this issue in order to afford the Veteran his requested Travel Board hearing.  The record shows that a notification letter was sent in February 2016 informing the Veteran that he was placed on the Travel Board hearing list; however, a hearing has not yet been held.  As such, remand for compliance with the Board's November 2014 directives is necessary.  

Accordingly, the case is REMANDED for the following action:

1.  Provide the Veteran his requested Travel Board hearing.
 
2.  After conducting any additional development deemed necessary, readjudicate the claim, considering all the evidence of record.  If any determination remains unfavorable, the Veteran and his representative must be furnished with a Supplemental Statement of the Case and given an opportunity to respond before the case is returned to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters 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).




______________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs