Citation Nr: 1617050 Decision Date: 04/28/16 Archive Date: 05/04/16 DOCKET NO. 13-11 791 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to an initial compensable rating, for the period prior to September 23, 2015, and greater than 40 percent disabling thereafter, for service connected bilateral hearing loss. REPRESENTATION Appellant represented by: Joel Ban, Attorney ATTORNEY FOR THE BOARD Timothy A. Ralls, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1984 to May 1986 and from April 1988 to January 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from June 2012 and September 2013 rating decisions issued by the above Department of Veterans Affairs (VA) Regional Office (RO). For clarity, a brief history of the Veteran's bilateral hearing loss claim is as follows. In a March 2006 rating decision, the RO denied entitlement to service connection for bilateral hearing loss. In February 2011 the Veteran filed another claim for a bilateral hearing loss. In a June 2012 rating decision, the RO denied service connection for right ear hearing loss and found clear and unmistakable error (CUE) in the denial of service connection for left ear hearing loss in the March 2006 rating decision. The RO assigned a noncompensable evaluation for left ear hearing loss from September 1, 2005. The Veteran timely appealed the denial of service connection and the noncompensable rating. While the appeal was pending, a September 2013 rating decision granted service connection for right ear hearing loss. The RO assigned a noncompensable evaluation for bilateral hearing loss. In July 2015 the case was remanded by the Board for further development. In a December 2015 rating decision, the RO assigned an evaluation of 40 percent disabling effective September 23, 2015. Because the March 2006 rating decision contained CUE, it did not become final. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, the Board notes that the period on appeal for bilateral hearing loss is from September 1, 2005, onward. In January 2016, the Veteran filed a Notice of Disagreement (NOD) to the effective date of the 40 percent evaluation for bilateral hearing loss. Because this appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned. Fenderson v. West, 12 Vet. App. 119 (1999). The effective date of the 40 percent evaluation is therefore part and parcel of this appeal. The Board notes that VA treatment records have been received since the Veteran was last issued a supplemental statement of the case (SSOC) in December 2015. It does not appear from the record that the Veteran submitted a waiver of review of that evidence by the Agency of Original Jurisdiction (AOJ). Review of the additional treatment records reflects that they are not relevant to the claim for an increased evaluation for bilateral hearing loss. Therefore, a remand for the issuance of a new SSOC is not warranted. 38 C.F.R. §§ 19.31, 19.37 (2015). See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in 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 veteran); 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 veteran are to be avoided). Additionally, the Veteran submitted statements by himself and his spouse regarding his hearing loss prior to September 23, 2015, which were attached to the Veteran's January 2016 NOD. The Veteran did not submit a waiver of review of those statements by the AOJ. However, the Veteran's substantive appeal for the issue herein was received after February 2, 2013, and 38 U.S.C.A. § 7105(e) provides an automatic waiver of initial AOJ review if a veteran or his or her representative submits evidence to the AOJ or the Board with or after submission of a substantive appeal. 38 U.S.C.A. § 7105(e) (West 2014); see VA Fast Letter 14-02 (May 2, 2014). FINDINGS OF FACT 1. The results of audiometric tests conducted in September 2011 show that the Veteran had level I hearing in his right and left ears. 2. The results of audiometric tests conducted in August 2013 show that the Veteran had level I hearing in his right and left ears. 3. The results of audiometric tests conducted in September 2015 show that the Veteran had level VI hearing in his right ear and level VIII hearing in his left ear. CONCLUSION OF LAW The criteria for assignment of an initial compensable rating, for the period prior to September 23, 2015, and greater than 40 percent disabling thereafter, for service connected bilateral hearing loss, have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.85, 4.86, Diagnostic Code 6100 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist a claimant 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). See also Pelegrini v. Principi, 18 Vet. App. 112 (2015); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required. The duty to assist has also been met and appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained the Veteran's service treatment records, VA treatment records, and private treatment records identified by the appellant as relevant to the appeal and for which the appellant has provided authorization for VA to obtain. The Veteran was provided VA audiological examinations in September 2011, August 2013, and October 2015. The examiners administered thorough clinical evaluations which provided findings pertinent to the rating criteria and allowed for a fully informed evaluation of the disability at issue. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The examiners also fully described the functional effects of the Veteran's bilateral hearing loss in their September 2011, August 2013, and October 2015 examinations. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). In July 2015, the Board remanded the claim to afford the Veteran a VA audiological evaluation. A VA audiological evaluation was conducted in September 2015. Therefore, based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's remand. See Dyment v. West, 1 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Significantly, neither the appellant nor his representative have identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Higher Evaluation Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson, 12 Vet. App. 126 -27. Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). 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(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per second (hertz). To evaluate the degree of disability for service-connected hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85. Examinations are conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). 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. See Bruce v. West, 11 Vet. App. 405, 409 (1998), quoting Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In addition, exceptional patterns of hearing impairment exist for VA purposes when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 hertz) is 55 decibels or more. Then, the rating specialist must 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). The Veteran seeks entitlement to an initial compensable rating, for the period prior to September 23, 2015, and greater than 40 percent disabling thereafter. The Board notes that there are no audiological examinations associated with the Veteran's file prior to 2011. The Veteran had a private audiological examination at Yankton Medical Clinic in June 2011. The pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 45 70 75 LEFT 40 35 45 70 80 The pure tone thresholds average was 58.75 decibels in the right ear and 57.5 decibels in the left ear. The Veteran's speech recognition was 80 percent in the right ear and 88 percent in the left ear. This test is not adequate for rating purposes because the examiner did indicate whether they performed the Maryland CNC test. The Veteran was afforded a VA audiological examination in September 2011. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 45 60 70 LEFT 30 35 45 60 75 The pure tone thresholds average was 52 decibels in the right ear and 54 decibels in the left ear. Maryland CNC speech discrimination was 94 percent in the right ear and 96 percent in the left ear. The Veteran reported that it was difficult for him to hear when there is background noise of if a speaker is not facing him. He also has difficulty communicating at work on the production line. Applying the foregoing medical evidence to the rating criteria for hearing impairment, the Veteran's right and left ears are assigned a category I designation under Table VI. 38 C.F.R. § 4.85. These categories correspond with a noncompensable disability rating under Table VII. 38 C.F.R. § 4.85. The Veteran's left and right ear hearing loss did not fall into one of the exceptional patterns that would allow for employment of a different Table under 38 C.F.R. § 4.86(a) or (b). The Veteran was afforded a VA audiological examination in August 2013. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 45 60 70 LEFT 40 35 50 55 65 The pure tone thresholds average was 51 decibels in the right ear and 51 decibels in the left ear. Maryland CNC speech discrimination was 94 percent in the right ear and 96 percent in the left ear. The Veteran reported difficulty hearing in background noise or if a speaker was not facing him. Applying the foregoing medical evidence to the rating criteria for hearing impairment, the Veteran's right and left ears are assigned a category I designation under Table VI. 38 C.F.R. § 4.85. These categories correspond with a noncompensable disability rating under Table VII. 38 C.F.R. § 4.85. The Veteran's left and right ear hearing loss did not fall into one of the exceptional patterns that would allow for employment of a different Table under 38 C.F.R. § 4.86(a) or (b). A VA audiology note, dated July 2014, noted the Veteran reported to the clinic for an audiological and hearing aid evaluation. Examiner noted hearing loss in both ears was mild to profound. The examiner used terms to describe the Veteran's hearing rather than values. A September 2014 VA audiology note reflects the Veteran's hearing aids were adjusted. The Veteran was afforded a VA audiological examination in September 2015. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 55 60 65 75 90 LEFT 65 70 75 85 95 The pure tone thresholds average was 72.5 decibels in the right ear and 81.25 decibels in the left ear. Maryland CNC speech discrimination was 76 percent in the right ear and 58 percent in the left ear. The Veteran reported trying hearing aids unsuccessfully. The impact on his daily life and work was that he could not hear what people said in day to day communication. Applying the foregoing medical evidence to the rating criteria for hearing impairment, the Veteran's right ear is assigned a category IV designation and the left ear is assigned a category VIII designation under Table VI. 38 C.F.R. § 4.85. These categories correspond with 20 percent disability rating under Table VII. 38 C.F.R. § 4.85. The Board has considered whether the Veteran's left and right ear hearing loss fell into one of the exceptional patterns that would allow for employment of a different Table under 38 C.F.R. § 4.86(a) or (b). The Veteran's hearing did fall under 38 C.F.R. § 4.86(a) and his right ear is assigned a category VI designation and the left ear is assigned a category VII under Table VIa. The right ear VI designation under Table VIa and the left ear VIII designation under Table VI would result in a 40 percent disability rating under Table VII. 38 C.F.R. § 4.85. In a January 2016 statement, the Veteran indicated that he must increase the volume on his television, telephone, and car stereo to such a high level that he disturbs his wife. The Veteran is in receipt of hearing aids and has been using closed captioning on his television. The Veteran finds the hearing aids to cause him pain or increase ambient noise. In a January 2016 statement, the Veteran's spouse stated that they have been together for the last 25 years. For the last two years, the Veteran had been unable to hear the speaker at a drive-through restaurant. The Veteran had stopped going to movies because he could not hear dialogue. His spouse stated that the Veteran had needed closed captioning on the television since late 2013 and he appeared unable to hear her unless she was in front of him or he was looking directly at her. She stated that the most drastic accommodations for the Veteran's hearing disability have been since late 2013. The audiometric evaluations discussed above do not reveal results warranting a compensable evaluation, prior to September 23, 2015, or in excess of 40 percent disabling thereafter. As such, a higher evaluation for bilateral hearing loss is denied. The Board acknowledges the statements made by the Veteran and his spouse regarding the increased hearing loss he experienced prior to the September 2015 audiological examination. As noted above, disability ratings for hearing loss generally must be based on objective testing by a state-licensed audiologist. The record contains no evidence that the Veteran or his spouse are licensed audiologists and, moreover, they have not provided any audiometric testing results. For these reasons, the Board finds that his assertions are not competent evidence of his degree of hearing loss. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that 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 would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court set forth a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether the Veteran's disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, the Veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a Veteran's disability picture requires the assignment of an extraschedular rating. The Board acknowledges the Veteran's reported complaints of bilateral hearing loss. The Board notes that in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the U.S. Court of Appeals for Veterans Claims 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, 21 Vet. App. at 455. According to the examinations in September 2011, August 2013, and October 2015 and the statements by the Veteran and his spouse, the Veteran's hearing loss has had some impact on the ordinary condition of Veteran's daily life. The Veteran's hearing loss has made it difficult for him to hear people, the television, the telephone, and music. The Veteran must face people to hear and he must wear hearing aids which he finds pick up ambient noise. The Veteran's hearing difficulties were, however, contemplated by the rating schedule. Notably, 38 C.F.R. § 4.85 contemplates any functional loss due to hearing impairment. As the Veteran's disability picture is contemplated by the rating schedule, the threshold issue under Thun is not met and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary. Thun v. Peake, 22 Vet. App. 111 (2008). The Veteran is currently in receipt of individual unemployability benefits effective December 1, 2013. Prior to that period, there is no evidence of record that the Veteran's hearing loss disability had markedly interfered with employment and remand or referral of a claim for TDIU is not appropriate. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER Entitlement to an initial compensable rating, for the period prior to September 23, 2015, and greater than 40 percent disabling thereafter, for service connected bilateral hearing loss, is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs