Citation Nr: 1617656 Decision Date: 05/03/16 Archive Date: 05/13/16 DOCKET NO. 13-08 284 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a rating in excess of 60 percent for bilateral hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from June 1971 to March 1978. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston Texas. The Veteran testified at a hearing before the Board by videoconference from the RO in January 2016. A transcript of the hearing is associated with the claims file. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. FINDINGS OF FACT 1. For the appeal period prior to May 5, 2015, the Veteran's bilateral hearing loss is manifested by no worse than Level IV hearing acuity in the right ear and Level IX hearing acuity in the left ear. 2. As of May 5, 2015, the Veteran's bilateral hearing loss is manifested by no worse than Level IX hearing acuity in the right ear and Level XI hearing acuity in the left ear. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 60 percent for bilateral hearing loss prior to May 5, 2015 are not met. 38 U.S.C.A. §§ 110, 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 3.951, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2015). 2. The criteria for a rating of 80 percent, but not higher, for bilateral hearing loss effective May 5, 2015 are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist VA has a 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 must notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 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). In April 2010, the RO provided notice that met the requirements. The notice explained the general method for assigning a rating and effective date and the Veteran's and VA's respective responsibilities to obtain relevant evidence. Moreover, in an August 2010 rating decision, the RO explained how the results of audiometric testing determined the appropriate rating; and in a February 2013 statement of the case, the RO provided copies of tables from the applicable regulation used to determine the rating. Therefore, the Board finds that the Veteran received adequate notice and information on the method for determining the rating for bilateral hearing loss. VA has a duty to assist the Veteran in the development of the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's active duty service treatment records, identified private and VA treatment records through June 2015, and statements from the Veteran, his spouse, and his employer have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. Therefore, the Board finds that VA has satisfied its duty to assist in obtaining all available records. The Veteran was afforded VA contract audiometric examinations in June 2010 and May 2015 to evaluate his bilateral hearing loss. In addition to recording objective test results, an 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 the June 2010 and May 2015 examination reports, the VA contract audiologists addressed the Veteran's reported functional effects such as intermittent tinnitus, difficulty understanding conversations at a distance, and having to read lips and ask for repetition. In his March 2013 substantive appeal, the Veteran contended that his hearing had become more severe and that the June 2010 examination was incorrect. The RO obtained the additional examination in May 2015 to confirm the level of disability. In a written statement dated in April 2016, the Veteran waived consideration of this evidence by the agency of original jurisdiction. The Board finds that both examinations are adequate as they include an interview with the Veteran, an accurate summary of the history, complete audiometric testing, and an ontological examination that addressed the relevant rating criteria. As such, the Board finds that the examinations of record are adequate to adjudicate the Veteran's rating claim and no further examination is necessary. The Veterans Law Judge (VLJ) who chairs a hearing must fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. 38 C.F.R. 3.103(c)(2) (2015); Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the January 2016 hearing, the undersigned VLJ noted that basis of the prior determination and the elements of the claim that were lacking to substantiate the claim for a higher rating. In addition, the undersigned sought to identify any pertinent evidence not currently associated with the claims folder such as records of clinical treatment that might have been overlooked or was outstanding that might substantiate the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor has identified any prejudice in the conduct of the RO/Board hearing. 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) and that the Board can adjudicate the claim based on the current record. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis The Veteran served as a U.S. Army infantryman with non-combat duty in Alaska. Service records show that the Veteran was exposed to small arms fire and ordnance detonations in training. Military clinicians diagnosed bilateral sensorineural hearing loss starting in 1973. In 1975, clinicians restricted the Veteran from further duties involving weapons. VA granted service connection for bilateral hearing loss and assigned a 20 percent rating, effective March 27, 1978, the day following discharge from active duty. The RO obtained a VA examination in April 1986, and in July 1986, assigned a 60 percent rating, effective April 22, 1986. The RO received the Veteran's current claim for an increased rating in March 2010. The Veteran contended in statements in October 2010, to VA examiners in June 2010 and May 2015, to VA audiometry clinicians since May 2014, and during the Board hearing that his bilateral hearing acuity is more severe than is contemplated by the 60 percent rating. The Veteran has also been awarded service connection and a 10 percent rating for tinnitus, and service connection and a 50 percent rating for depression secondary to hearing loss, both effective in May 2014. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. 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 the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. 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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 Hertz (Hz). The rating schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. The assignment of disability ratings for hearing impairment is 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 criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of puretone audiometric tests. These results are then charted on Table VI; Table VIA, in exceptional cases as described in 38 C.F.R. § 4.86; and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the puretone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. Examinations 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 audiometric test. 38 C.F.R. § 4.85. Audiologists must describe the effects on occupational functioning and daily activities so that it can be determined if an extra-schedular evaluation may be assigned. Unlike the rating schedule for hearing loss, the extra-schedular provisions do not rely exclusively on objective test results to determine if referral is warranted. Martinak, supra. A disability rating that has been continuously rated at or above a certain percentage for at least 20 years is a protected rating. A protected rating cannot be reduced, let alone eliminated, absent a showing of fraud. 38 U.S.C.A. § 110 (West 2014); 38 C.F.R. § 3.951 (2015). The most recent audiometric examination of record prior to the date of claim was a VA examination in April 1986. In this report, puretone thresholds at 1000, 2000, 3000, and 4000 Hz were 40, 55, 50, and 35 decibels on the right and 50, 55, 50, and 60 decibels on the left. The puretone averages were 45 decibels on the right and 54 decibels on the left. Speech recognition scores were 48 percent on the right and 20 percent on the left. The audiologist diagnosed moderate sensorineural hearing loss. In June 2010, a VA contract audiologist did not note a review of the claims file but accurately summarized the Veteran's military noise exposure and his current reports of ringing or buzzing in the ears, difficulty hearing conversation, and having to read lips and ask for repetition. The Veteran reported that after service he worked at a water treatment facility for 6 years and for the U.S. Postal Service for 24 years. He reported operating motorcycles and watercraft and exposure to loud music without hearing protection, but he denied any current medical treatment or use of hearing aids. On examination, air conduction puretone thresholds at 1000, 2000, 3000, and 4000 Hz were 60, 60, 60, and 65 decibels on the right and 75, 75, 75, and 85 decibels on the left. The results for both ears met the criteria for an exceptional pattern. The puretone averages were 61 decibels on the right and 78 decibels on the left. Speech recognition scores were 80 percent on the right and 40 percent on the left. The audiologist noted that the air conduction test was the best measure of hearing acuity. A bilateral organic ear examination was normal. The audiologist diagnosed sensorineural hearing loss, moderately severe on the right and severe on the left, and also diagnosed tinnitus associated with military noise exposure. The audiologist noted that there was a severe impact of the disability on daily activities without the use of hearing aids but the disability would improve with their use. In October 2010, the Veteran submitted documents dated in 2002 and 2005 that showed that his employer was concerned that he could not qualify to operate certain work vehicles such as a tow motor or forklift truck. However, the documents show that a federal regulatory agency did not prohibit these duties if the employer exercised appropriate safeguards, and the Veteran did qualify for the duties. VA medical records indicate that the Veteran did not use hearing aids prior to 2014. In a December 2010 statement, the Veteran acknowledged his successful qualification but reported that the job was awarded to another employee. In a written statements dated in December 2010, the Veteran reported that he was withdrawn for social situations because he could not hear conversation and was depressed to have to ask for repetition. In a statement the same month, the Veteran's spouse noted her observation that his hearing acuity was worsening such that he had to watch television alone because of the need for high volume. She noted that the Veteran avoided family and public functions and was passed over for workplace promotions because of his hearing deficits. In June 2014, a VA audiologist evaluated the Veteran and issued bilateral hearing aids. The audiologist noted that the Veteran would still have difficulty hearing in high background noise. On May 5, 2015, another VA contract audiologist noted a review of the claims file and the Veteran's report of difficulty hearing conversations and having to read lips. On examination without the use of the hearing aids, air conduction puretone thresholds at 1000, 2000, 3000, and 4000 Hz were 60, 60, 65, and 65 decibels on the right and 80, 80, 85, and 75 decibels on the left. The results for both ears met the criteria for an exceptional pattern. The puretone averages were 62.5 decibels on the right and 80 decibels on the left. Speech recognition scores were 36 percent on the right and 18 percent on the left. An organic ear examination was normal. A Stenger test was administered because there was a difference of 20 decibels or more between the two ears, but the tests were negative. The audiologist diagnosed bilateral sensorineural hearing loss and evaluated the speech discrimination scores as poor. All audiometric test results since 1986 are compiled below for comparison purposes. Examination Date Source Ear Puretone Threshold Average Speech Discrimination Percent Table VI or VIA Result Table VII Result April 1986 VA R L 45 54 48 20 VII XI 60 June 2010 VA R L 61 78 80 40 IV IX 30 May 2015 VA R L 62.5 80 36 18 IX XI 80 During the January 2016 Board hearing, the Veteran testified as to the diagnosis of bilateral hearing loss during active service and that he was unable to advance as a supervisor for the Postal Service because of his hearing disability. He stated that he retired because he was unable to lift 80 pound sacks of mail because of a spinal disorder. He stated that he current used hearing aids and felt that his hearing was 15 to 30 percent effective in one ear and absent in the other. The Board finds that a rating in excess of 60 percent prior to May 5, 2015 is not warranted. The June 2010 examination was performed within a few months of the Veteran's March 2010 claim for an increased rating, and there is no VA or private evidence of record of testing or treatment prior to this date. The testing in June 2010 showed considerable improvement in hearing acuity and speech discrimination which is an unusual outcome in cases of sensorineural hearing loss and not consistent with the Veteran's and his spouse's lay observations of worsening symptoms. Nevertheless, the testing also does not show a level of disability that exceeds the protected rating of 60 percent. The Veteran did challenge the accuracy of the June 2010 but only on the basis that it did not show a more severe level of disability and not because of specific discrepancies in the testing such as failure to use proper equipment, test procedures, or qualified technicians. The Board is unable to identify any of these potential shortcomings in a review of the test report. It is equally possible that the April 1986 testing was in error because the puretone averages are considerably lower than those measured in both 2010 and 2015. However, the Board is also unable to identify errors in a review of 1986 report and there is no evidence of fraud at any time by any party. Moreover, the Veteran had the opportunity to obtain test results from a private provider at any time prior to May 5, 2015. The Board finds that a rating of 80 percent, but not higher, is warranted effective May 5, 2015, the date of the VA examination, based on the mechanical application of the rating schedule to the numeric designations assigned after audiometric test results are recorded. The Veteran has not challenged the accuracy of this test, which does reflect a decline in speech discrimination that is consistent with the Veteran's and his spouse's lay evidence of increased difficulty hearing conversation and television. The Board considered whether an extra-schedular rating was warranted at any time during the period covered by this appeal. See 38 C.F.R. § 3.321. The determination of whether a claimant is entitled to an extra-schedular rating is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. The second step requires a determination of "whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Id. at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires referral of the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extra-schedular rating is warranted. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected hearing loss with the established criteria found in the rating schedule. The Board notes that the Veteran has described the functional impairment he experiences as a result of hearing loss, to include difficulty understanding television and conversation in social situations. However, the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by Veterans with certain degrees and types of hearing disability. In support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86. The rating criteria for hearing loss were last revised, effective June 10, 1999. See 64 Fed. Reg. 25206 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these Veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of Veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of Veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17295 (April 12, 1994). Accordingly, the Board finds that functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria. Furthermore, the Board notes that under 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 the evaluation of the individual conditions fails to capture all the symptoms associated with service-connected disabilities experienced. However, in this case, there is no additional impairment that has not been attributed to a specific, rated disability. In this case, this includes tinnitus and major depression secondary to the hearing disability. Accordingly, this is not an exceptional circumstance in which extra-schedular consideration may be required to compensate the Veteran for disability that can be attributed only to the combined effect of multiple conditions. Consequently, the Board finds that the Veteran's hearing loss symptomatology is fully addressed by the rating criteria under which his disability is rated. There are no additional symptoms of hearing loss that are not addressed by the rating schedule. The rating criteria reasonably describe the Veteran's disability level and symptomatology for his service-connected disability. Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). A claim for TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran reported that he chose to retire from the U.S. Postal Service when eligible by age and length of service but in part because he was not selected for positions of greater responsibility because of his hearing disability. However, neither the Veteran nor his employer provided evidence that he was unable to continue his full time employment at the duties that he successfully executed for more than two decades. Therefore, the Board finds that the record does not raise the issue of an inability to secure or follow substantially gainful employment. See 38 C.F.R. § 4.16 (2015). The Board has also considered the applicability of the benefit of the doubt doctrine. However, the mechanical application of the test results to the applicable regulations does not warrant a rating in excess of 60 percent prior to May 5, 2015. A rating of 80 percent, but not higher, is warranted effective that date. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER A rating in excess of 60 percent for bilateral hearing loss prior to May 5, 2015 is denied. A rating of 80 percent, but not higher, for bilateral hearing loss, effective May 5, 2015 is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs