Citation Nr: 1617036 Decision Date: 04/28/16 Archive Date: 05/04/16 DOCKET NO. 14-03 675 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD A. N. Nolley, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1973 to November 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. When this case was last before the Board in September 2015, it was remanded for additional evidentiary development. The case has now been returned to the Board for further appellate action. The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System. FINDING OF FACT Throughout the initial rating period, the Veteran's hearing impairment has been no worse than Level I in the right ear and Level III in the left ear. CONCLUSION OF LAW The criteria for an initial compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2015), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2014), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided adequate VCAA in a letter sent in January 2010, prior to the May 2010 rating decision on appeal. All appropriate development to obtain the Veteran's pertinent, available service treatment records (STRs) and post-service VA and private medical records has been completed. The Veteran has not identified any pertinent, outstanding records that could be obtained to substantiate his claim. The Board is also unaware of any such records. Moreover, the Veteran was afforded appropriate VA examinations during the time period relevant to this appeal. VA has complied with its duty to assist the Veteran. Accordingly, the Board will now address the merits of the claim. General Legal Criteria: Disability Ratings Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2015). 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. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321(a), 4.1 (2015). In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2015) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability under appeal. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability under review. Disability ratings for hearing loss disability are derived from mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(b). Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c). "Puretone threshold average" as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85(d). Table VII, "Percentage Evaluations of Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85(e). Provisions for evaluating exceptional patterns of hearing impairment are as follows: (a) When the puretone thresholds 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. (b) When the puretone thresholds are 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; the numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. By way of background, the Veteran was initially awarded service connection for left ear hearing loss in a May 2010 rating decision, and a noncompensable evaluation was assigned. During the pendency of this appeal, the Veteran was subsequently awarded service connection for right ear hearing loss in a September 2015 Board decision. In the rating decision implementing the Board's decision, the right ear hearing loss was combined with the left ear as bilateral hearing loss, and the previously assigned non-compensable disability evaluation was confirmed. The Veteran submitted audiological examination results from his employer dated August 2008 and April 2010. However, these records do not include evaluation necessary for determination of a rating under 38 C.F.R. § 4.85. In response to his claim for service connection, the Veteran was afforded a VA audiological evaluation in May 2010. The examiner noted the Veteran could hear conversational speech in quiet if looking at the speaker, but would have difficulty hearing soft speech, women and children's voices, or if background noise was present. The examiner found that the Veteran's hearing loss would have an effect on occupational functioning and daily activities, but would not prevent him from performing his duties as a welding inspector, when wearing hearing aids. At the May 2010 VA examination, puretone thresholds were as follows: RIGHT EAR 1000 Hz 2000Hz 3000Hz 4000Hz Avg Hz 30 40 40 60 43 LEFT EAR 1000 Hz 2000Hz 3000Hz 4000Hz Avg Hz 40 45 75 70 58 Thus, the puretone threshold average is 43 in the right ear and 58 in the left ear. Speech recognition was 92 in the right ear and 88 in the left ear. Applying the values above to Table VI results in a Level I Roman numeral designation for the right ear and Level III Roman numeral designation for the left ear. Application of a Level I designation and Level III designation to Table VII results in a noncompensable rating. The readings reported in this evaluation do not meet the requirements for evaluation as an exceptional pattern of impairment. Following the Board's remand, the Veteran was again afforded a VA examination in December 2015. The examiner noted that the Veteran's hearing loss impacted his ordinary conditions of daily life. The Veteran reported that others noticed his hearing problems, but that his bilateral hearing loss did not impact his job. On examination, puretone thresholds were as follows: RIGHT EAR 1000 Hz 2000Hz 3000Hz 4000Hz Avg Hz 35 45 55 65 50 LEFT EAR 1000 Hz 2000Hz 3000Hz 4000Hz Avg Hz 45 55 75 75 63 Thus, the puretone threshold average was 50 in the right ear and 63 in the left ear. Speech recognition was 92 in the right ear and 84 in the left ear. Applying the values above to Table VI results in a Level I Roman numeral designation for the right ear and Level III Roman numeral designation for the left ear. Application of a Level I designation and Level III designation to Table VII results in a noncompensable rating. The readings reported in this evaluation do not meet the requirements for evaluation as an exceptional pattern of impairment. The Court has held 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 v. Nicholson, 21 Vet. App. 447, 455 (2007). In accordance with this decision, the May 2010 examiner noted the Veteran's difficulty with conversational language and hearing soft speech. The December 2015 examiner noted that the Veteran had to ask people to repeat themselves, but that his hearing loss did not impact his job. On review of the file, it is evident the criteria for a compensable rating under Diagnostic Code 6100 are not met. Although the audiological evaluations clearly showed that the Veteran has hearing loss, the hearing loss has not yet met the compensable level under the rating schedule. Thus, an initial compensable rating for bilateral hearing loss is not warranted under the schedular criteria. VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). The Board has accordingly considered the lay evidence offered by the Veteran, in the form of correspondence to VA and the medical evidence cited above. The Veteran is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, even affording the Veteran full competence and credibility, the evidence simply does not show entitlement to a compensable rating for bilateral hearing loss at any time during the period of the claim. The Board has considered whether the claim should be referred to the Director of Compensation Service for extra-schedular consideration. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disabilities with the established criteria provided in the rating schedule for each 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 evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the manifestations of the service-connected bilateral hearing loss are contemplated by the schedular criteria. There is no indication in the record that the average industrial impairment from the disability would be to a compensable degree. The Board has therefore determined that referral of this case for extra-schedular consideration under 38 C.F.R. § 3.321(b) is not in order. ORDER An initial compensable rating for bilateral hearing loss is denied. ____________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs